頭部外傷急診留觀案：醫療常規的撥亂反正【學習式判解評析】 試閱
Observation of Head Injury in Emergency Station: Judgments from the Supreme Court in a Case of Head Injury
醫審會於鑑定書中指出醫事鑑定向來所稱之醫療常規，本即包含醫療水準及相關客觀條件，並已考量醫師是否已盡醫療水準之注意義務，並非僅為醫療處置之一般最低標準。本案發生於2007年農曆春節初二晚上，終審法院認為被告醫師依據臺灣神經外科醫學會根據美國、加拿大及歐洲的指引於2006年制定之臺灣版—輕度及嚴重頭部外傷治療準則及中輕度頭部外傷病人接受電腦斷層檢查準則而為醫療行為（名為國家標準說，其實是世界標準說的注意義務）符合醫療常規，已盡醫學中心醫療水準之注意義務，亦未逾越合理臨床專業裁量，更非重大醫療瑕疵，其等所為醫療處置並無過失。德國法重大醫療瑕疵理論的重大性之判斷必須藉助於鑑定之證據調查。本案終審法院於判決時主張醫師實施醫療行為時，如符合醫療常規，而被害人未能舉證證明醫師實施醫療行為過程中有何疏失，即難認醫師有不法侵權行為。
The medical review committee pointed out in the appraisal testimonial that what medical appraisals have always called customary medical practice includes medical level and related objective conditions, and has considered whether doctors have fulfilled their medical standards of care and is not just a general minimum standard for medical treatment. This case occurred on the night of the second day of the long holidays of Chinese Lunar New Year in 2007. The Supreme Court held that the defendant physicians did follow the Taiwanese version of the “Treatment Guidelines for Mild and Severe Head Injury” and “Mild Head Injury undergoing Computed Tomography Examination Guidelines” announced at 2006. These guidelines were modified from those of the USA or European countries announced at 2004. The standards of care that Supreme Court followed should be classified as national standards, but actually world standards instead. The judgment of the Court of Final Appeal said that physicians in the emergency room complied with customary medical practice, had fulfilled the duty of due care required by the medical level of medical center, and had not exceeded reasonable professional clinical discretion, let alone a major medical defect, and they were not at fault for prescribing medical treatment. The judgments of the significance of the theory of major medical defects in German law must rely on the investigation of expert evidence. In its judgment, the Court of Final Appeal held that if a doctor’s medical behavior complies with customary medical practice, and the victim fails to provide evidence to prove that the doctor made any negligence during the medical behaviors, it is difficult to recognize that the doctor has committed an unlawful tort.
065-092
