Although the Supreme Court held specifically in its 107-Tai-Shang-4587 Decision of April 2, 2019 (hereinafter, the “Decision”) that the medical treatment had violated medical custom, still an act of medical negligence can be determined only when there is a specific causal relationship between the negligent act and the results.
According to the facts underlying this Decision, Appellant A, who is not a qualified medical practitioner, and Appellant B performed a liposuction surgery on the victim. The victim suddenly suffered from blinking, cramps, general agitation, squeaking, convulsions and other symptoms during the operation, and his life was objectively at risk. However, due to a lack of sufficient first-aid equipment, effective first-aid measures could not be carried out. The victim was not immediately transferred to a medical institution, and the local fire department was not informed to send personnel to transport the patient. Instead, Appellant A only massaged unknown acupuncture points on the victim’s feet, and Appellant B gave oxygen to the victim, even though such measures did not help relieve the victim’s critical symptoms. The delay in delivering the victim to a hospital caused the victim to die of neurogenic and septic shock due to hypoxic cerebral palsy and pneumonia.
According to the Decision, although the liposuction and breast enlargement surgery involved in this case fall within the scope of plastic surgery and is not a traditional treatment provided for purposes of healing injuries or illnesses or recovering the health of the patients, still the anesthesia, liposuction or subsequent first aid performed by the Appellants to the patient, i.e., the victim by the name of Ping Lu, is a medical treatment within the meaning of the Medical Care Law and subject to Article 82, Paragraphs 3 and 4 of the Medical Care Law.
It was further mentioned in this Decision that although the medical treatment could be preliminarily determined to be a negligent act for violation of medical custom, still it is necessary to further determine if this negligent act was a critical factor for the unexpected death or injury of the patient. Even though the medical treatment violated the medical custom, a specific causal relationship between such negligent act and the results is still required. In view of the uncertainty of a treatment with varied urgencies in addressing symptoms, it is difficult to expect a physician to deal with issues in regularly manner. Therefore, the standard for “urgencies” should be determined from the perspective of a physician. In case of a real emergency, even if a physician’s treatment does not comply with medical custom, it should be concluded that there is no negligence within a reasonable “clinical and professional discretionary limit.” Since the patient had contracted an illness before a treatment was administered with a natural progression of the illness, a probability of death or injury under the influence of the existing illness did exist in the first place. To determine if the subsequent treatment can be attributable to the death or injury, it is necessary to determine if there is any major and adequate connection between the death or injury and the subsequent treatment and to rule out that the death or injury is caused by the pre-existing illness of the patient. The assessment report prepared by the Medical Review Board of the Ministry of Health and Welfare and cited in the original decision only indicated that the risk of death was increased in the absence of complete medical instruments and equipment and could not completely rule out the probability of the victim’s death caused by shock due to a treatment delay for a lack of medical instruments and equipment. However, the reason why ordinary patients could all die of shock under the same medical facility condition if the detection of abnormalities and first aid timing are delayed for a lack of medical instruments and equipment and the “typical” or “high” probability of such outcome were not clearly analyzed.
Finally, the Supreme Court reversed and remanded the original decision to the Taiwan High Court for violating the law since it had failed to conduct comprehensive investigation and did not have insufficient grounds.