肌肉鬆弛劑致死案：不作為醫療過失致死之因果歸責【學習式判解評析】 試閱
The Muscle Relaxant Case: On the Objective Attribution for the Medical Negligent Homicide by Omission
本案被告醫師先因過失錯誤指示護理師用藥，之後又延誤將被害人轉診送醫急救，導致被害人死亡。在此種行為人前後雙重過失行為導致他人死亡的案例中，由於行為人後面的過失係以不作為的形式出現，不作為代表並未介入先前過失行為所製造的風險實現歷程，被害人死亡的結果仍然是先前過失行為所製造風險的實現，因此行為人先前的過失行為會成立過失致死罪。再加上我國法上並不存在過失結合過失的「結果加重犯」類型，法理上只能針對行為人先前錯誤指示護理師用藥之過失行為，論以過失致死罪。本案歷審判決均認定被告成立不作為過失致死罪，且未對於不作為之因果關係進行實質判斷，仍有檢討之空間。
In this case, the accused physician negligently instructed a nurse to administer the wrong medication and then delayed referring the victim for emergency care, resulting in the victim’s death. In this type of case, where the perpetrator’s double negligence caused the death of another person, since the tortfeasor’s subsequent negligence was in the form of an omission, meaning that he did not intervene in the course of the risk created by the previous negligent act, and the result of the victim’s death was still the realization of the risk created by the previous negligent act. The perpetrator’s prior negligent act would therefore be convicted of the crime of wrongful death. In addition, there is no such concept of “crime with aggravated result” in the legal norm, so only the previous negligence of the perpetrator who wrongly instructed the nurse to administer the medication could legally be counted as involuntary manslaughter. In this case, the verdicts of the previous trials all recognized that the defendant was guilty of negligent homicide by omission and did not make a substantive judgment on the causal relationship between the omission and the death, so there is still room for review.
059-078
