【醫療民事法】車禍腦傷術後照護失當案：謎樣的損害賠償範圍【學習式判解評析】 試閱
Medical Malpractice in Victims of Brain Injury after Traffic Accident: Puzzle over the Amount of Damages
裁判字號 最高法院104年度台上字第2004號
引用法條 民法第184條第1項、185條、188條、227條、227條之1、193條第1項、195條第1項前段、第3項
車禍病患受有初級腦傷送醫，於接受硬腦膜外血腫清除手術後，因昏迷狀態未有改善遂轉送至醫學中心，經電腦斷層掃描診斷有顱內出血等次級腦傷，再手術將其腦內出血部分清除，惟仍有腦部細胞壞死與左側癱瘓等後遺症。原告遂起訴本件，請求原診治照護之醫師與醫院損害賠償。本件涉及醫療傷害責任範圍之認定問題，由兩位作者分別就病患履行利益與固有利益之損害範圍、具定期金性質賠償之估算、餘命損害、肇事者與醫師間賠償責任之劃分，以及植物人之餘命等議題進行論述。
The plaintiff A was sent to the defendant Hospital after a traffic accident, and emergent craniotomy was performed by the defendant doctor B to evacuate the epidural hematoma, and was transferred to ICU for postoperative care by defendant B, C, and D. The Glasgow Coma Scale fluctuated around 5-8 during the post-operative course and consequently A was transferred to Medical center where the Glasgow coma scale was 3 and subdural hematoma was diagnosed by CT. Emergent operation was done, yet A became hemiplegia and suffered from swallowing disturbance, and incontinence of urine and stool. The district court held that the defendants were liable since the intracranial pressure monitor device has not been applied intraoperatively, moreover the defendant failed to clinically monitor the possibility of developing “secondary brain injury” which constitute 60% of the plaintiff’s brain damage. However the decision varies in subsequent appeal courts and the supreme courts regarding the liability and the estimation of damages. Two authors comment on this case with special emphasis on the calculation of damages since should the defendants be liable, they were responsible for at most only 60% of the plaintiff’s brain injury, other than which, what we called “primary brain injury” should not be attributable to the fault of the defendants. Moreover disputes about the earnings in the lost years of the plaintiff and the survival year of the plaintiff herein and the vegetables are also discussed.
084-128
