Ankwei Chen
The Supreme Court rendered the 108-Tai-Shang-2180 Decision on February 13, 2020, in which it held that even if a physician’s treatment based on his/her assessment is appropriate, since there is no guarantee that the patient’s condition will improve, it is not appropriate to conclude that the treatment was in violation of a physician’s duty of care solely because it was not as effective as expected.
Appellee is an heir of Individual A, who was a person at high risk of bowel ischemia. Individual A was taken to the emergency room of a hospital with severe lower abdominal pain. After an abdominal computed tomography was performed, it was determined that A had an obstructed bowel and gastric bloating. As a result, a nasogastric tube was inserted and a treatment was administered to promote bowel movement, while surgeon Individual B, an Appellant in this case, was consulted. B misdiagnosed A’s complaint of abdominal pain for a functional bowel obstruction and did not arrange for A to undergo angiography or to be transferred to another hospital for treatment. A repeatedly complained of abdominal pain during hospitalization, but B did not visit, examine or further treat A. A then took a turn for the worse and was transferred to an intensive care unit. After computed tomography examination was performed, it was concluded that A had suffered from bowel necrosis and should be operated immediately. Appellee then transferred A to another hospital, but it was found that most of the intestines were already necrotic due to the prolonged ischemia, and as a result, A died of severe sepsis. Appellee asserted at the original trial court that B was negligent for failing to discover A’s intestinal ischemia in time and thus should be liable for damages. The original trial court held that B, who was aware that A had continuously complained about abdominal pain during his hospitalization, should have highly suspected that A might be suffering from intestinal ischemia, and that further examination would be necessary, but B did not investigate the cause of A’s abdominal pain for as long as 2 days during his hospitalization, and if further investigation had been performed, the presence of bowel ischemia would have been detected, making A’s death not inevitable. 。
According to the Decision, to determine if a physician has acted willfully or negligently resulting in a breach of the duty of care in the course of medical treatment, it is necessary to generally consider factors such as the level of medical capabilities at that time, , the discretion of the physician over the specific case, the unique physiological characteristics of the patient, among others. In addition, even in case of proper assessment prior to a medical act, there is still no guarantee that the patient’s condition will definitely improve, so it is inappropriate to conclude that the treatment was in breach of duty of care solely because of failing to meet expected efficacy, or there were subsequent side effects or infections.
However, at the first instance trial, there was testimony that even if the cause of A’s abdominal pain was diagnosed to be intestinal ischemia, the patient might not be suitable for surgery because of the complete blockage of the superior mesenteric artery. What is the true meaning of this testimony? Does that mean there was a lack of causal relationship between B’s inaction to further examine the cause of Individual A’s abdominal pain and A’s death? It was inappropriate for the original trial court to not have fully investigated those questions to determine whether there was a significant causal relationship. In addition, evidence showed that B had instructed to give intravenous nutrition injection and consulted gastroenterologists to arrange for colonoscopy; also, as A was vomiting a brown fluid, complained of back pain and general discomfort, there were arrangements to examine the occult blood in the vomitus, provide peptic ulcer medication treatment, conduct a gastroscopy, a blood test and take a lumbar spine X-ray, while orthopedists were consulted to inject analgesic to relieve the back pain. Given the above, the finding of the original trial court that B had only instructed the administration of analgesics or antidiarrheal medication for treatment without further examining the cause of A’s abdominal pain and taking proper treatment measures is not consistent with the rule of evidence. Therefore, there was proper basis for the appeal.