控訴腰椎手術術式變更案：知情同意之雞同鴨講
Claim for Unauthorized Change in Lumbar Surgery Procedure: Talking Past Each Other in Informed Consent
病人接受腰椎手術，因醫病雙方對於術前說明內容之理解有出入，主張醫師未依其同意之方式而逕自變更術式，請求損害賠償。一審法院以醫師已善盡告知義務而駁回病人之訴，病人未上訴本件告確定。本文就醫師已善盡告知說明義務，但病人仍理解錯誤之雞同鴨講情形，探討此類瑕疵同意下之醫療責任審查機制，並試擬損害賠償範圍之判定原則。
A patient underwent lumbar spine surgery and claimed damages, alleging that the physician unilaterally altered the surgical procedure without performing it according to the agreed-upon method, due to a discrepancy in mutual understanding regarding the preoperative explanations. The district court dismissed the patient’s claim on the grounds that the physician had fully discharged the duty of informed consent; the patient did not appeal, rendering the judgment final. This article explores the medical liability review mechanism under such “defective consent”—situations where the physician has fulfilled the duty of disclosure, yet the patient still misunderstands the information (“talking past each other”)—and proposes tentative principles for determining the scope of damages.
056-072
