【醫療刑事法】氣喘病患健檢服用Inderal案：變更自訴法條【學習式判解評析】 試閱
【Criminal Law in Medical Malpractice】Inderal Prescribed to Asthma Victim During Health Exam: Change of Charge Brought by Private Prosecutor
本案被害人至醫院保康健檢中心接受心臟冠狀動脈64切面電腦斷層掃描，雖於「同意書」之病史欄勾選氣喘項目，但護理人員仍使其服用醫師預先開立禁忌症之一為氣喘的Inderal藥物，致使被害人氣喘發作，雖經救治，仍因急性心肺衰竭而死。被害人家屬為此對醫院院長、健檢中心主治醫師、放射科主任醫師、急診科醫師及護理人員，就業務過失致死罪提起自訴。一審法院認為不能認定被害人之急性心肺衰竭與其服用系爭藥物有相當因果關係，是以認定無罪。二審法院，雖贊同一審法院，但表明被害人服用系爭藥物與其氣喘發作之傷害有相當因果關係，並依據刑事訴訟法第343條準用同法第300條，變更自訴人所引應適用之法條，改論以業務過失傷害罪。最高法院撤銷二審判決，認被害人自服用系爭藥物後，誘發氣喘之發作，並經急救無效而至於死亡，前後原因事實及結果相繼接連發生，其間是否並無相當因果關係，即饒有研求之餘地；又被告醫師於檢查當日不在現場，是否該當過失犯罪，亦非無疑。發回更一審後，判無罪確定。本評析之作者群針對本案諸多爭議分別作出評論。
The victim visited Health Examination Department of F Hospital on Sep. 18th in 2008 for 64 slice coronary artery CT scanning. Though he ticked the “asthma” checkbox in past history on the informed consent sheet, yet the nursing staff gave him Inderal 10mg because the in-charge doctor of Radiology Department prescribed in advance that gave the examined subject Inderal 10mg if his pulse rate >70/min. The victim developed asthma after taking Inderal, and passed away despite resuscitation. The victims’ family filed a private prosecution toward related staff (this review article would focus on the accused in-charge doctor of Radiology Department) under the crime of negligently causing the death of another in the performance of his occupational activities. The district court found the accused not guilty because the causation between the accused doctor’s negligence and the victim’s death is lacking, the private prosecutor appealed. The high court though still found the accused not guilty under the crime filed by prosecutor, yet the court held that since the facts warrant, the charge brought by the private prosecutor may be changed to the crime of negligently causing the injury of another, and accordingly found the accused doctor guilty. The Supreme Court reversed with the reasoning that the following two items should be reconsidered, namely the causation between the victim’s death and the accused doctor’s negligence, and whether the accused doctor bore the duty of care on the day of examined. The new trial found the accused doctor not guilty because he bore no duty of care. This review elaborated several disputes regarding this case, such as whether the accused doctor bore the duty of care? Is it feasible by the code of procedure that the charge brought by the private prosecutor (that is negligently causing the death of another) been changed to by the court? Is the accused doctor negligently causing the injury of victim? All these were discussed by 4 authors.
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