2017.12.29
Jonathan Chao
The 9th Term of the Legislative Yuan adopted the draft amendment to Article 82 of the Medical Care Act during the 15th Meeting of the 4th Session on December 29, 2017. The amendments are focused on specifically setting the criteria for negligence and the matters that shall be adjudicated concerning the civil and criminal liabilities of medical practitioners in order to achieve clear and reasonable determination of the medical liabilities of medical practitioners.
For starter, a medical act is professional and unpredictable, and medical doctors are obligated to provide treatment pursuant to law. To balance the professionalism of medical doctors and the rights and interests of patients, Article 82, Paragraph 2 of the Medical Care Act as amended specifically defines “negligence” in civil liabilities for damages as something “resulted from violating the duty of care required of medical treatment and exceeding reasonable professional clinical discretion.” To ensure clear and reasonable determination of “negligence” under the Criminal Code, Article 82, Paragraph 3 of the Medical Care Act as amended also specifically provides that “the death or injuries of patents as a result of negligenceunder the medical services performed by medical practitioners” shall be limited to “violation of the duty of care required of medical treatment and exceedance of reasonable professional clinical discretion.” With respect to above definition of negligence concerning civil and criminal liabilities, Article 82, Paragraph 4 of the Medical Care Act as amended specifically provides for a determination standard for “violating the due care and the scope of professional clinical discretion” by stipulating that the determination shall be based on “objective conditions such as the local then-effective medical conventions, medical standards, medical facilities, working conditions and urgency for such medical domain” so as to balance the elevation of medical standards and the protection of a patient’s rights and interests. Finally, since the safety and perfection of a medical environment will affect the outcome of medical services provided by medical practitioners, and medical practitioners are mostly hired by a medical institution, their liabilities should be smaller than those of the medical institutions. Article 82, Paragraph 5 of the Medical Care Act as amended therefore provides that the negligence liability of a medical institution shall not be limited to “violation of due care required of medical treatment and exceedance of reasonable professional clinical discretion.”