The Kaohsiung Branch of the Taipei High Court rendered the 104-Yi-Shang-1 Civil Decision of October 25, 2016 (hereinafter, the “Decision”), holding that if a certain sign has been determined or highly suspected by a medical practitioner to be associated with a specific disease according to common medical practice but appropriate treatment is not taken, the practitioner shall be liable for damage to the patient.
The Appellants were the spouse and children of the deceased. According to the facts underlying this Decision, after noticing a seed-sized lump in her breasts, the deceased had her breasts examined, underwent surgery to remove the tumor in her right breast and accepted chemotherapy at Kaohsiung Medical University Chung-ho Memorial Hospital. However, following autopsy, no cancer cell was found. A complaint was filed for damages on the ground of medical negligence.
According to the Decision, once a certain sign is detected by a medical practitioner indicating that the disease is likely to be irreversible, it is possible that even with medical treatment, remission may not be achievable. Therefore, it is difficult to conclude that ineffective treatment results from the negligence of the medical practitioner. However, if a certain sign is determined or highly suspected by a medical practitioner to be associated with a specific disease according to common medical practice, but appropriate treatment is not taken and delayed due to negligence, the practitioner shall be liable for damage to the patient.
It was further noted in the Decision that after the timing and purpose of autopsy and pathology were considered, although the autopsy report indicated that no metastasis of breast cancer cells was found, the autopsy was not performed with the purpose of determining the existence of the cancer cells in the first place. Therefore, the argument that the pathological report was erroneous could not be supported. Moreover, the results of a CT scan on the brain of the deceased showed that she suffered from ischemic stroke (mild cerebral infarction), which is consistent with the deceasedÕs history during her outpatient visit and the preliminary diagnosis of her physical condition. However, since the deceased had a past medical history of cancer and was undertaking chemotherapy (cancer is a possible cause of cerebral infarction according to the examination report of the Medical Review Committee), the fact that no metastasis of cancer cells was found in the brain as a result of the autopsy could not be relied upon to question the medical practitionerÕs diagnosis. Since there was no medical negligence in this case, the appeal was rejected.