腹腔鏡膽囊切除手術失誤案：腹腔鏡膽囊切除術誤截斷總肝管案【學習式判解評析】 試閱
Error in Laparoscopic Cholecystectomy: Laparoscopic Cholecystectomy with Inadvertent Amputation of Common Hepatic Duct
本案原審判決及二審判決基於不同之理由，均未採納醫審會認定被告無過失之鑑定意見。原審及二審基於對手術紀錄之不同解讀，對被告於施行手術中誤夾告訴人之總肝管時，是否有清楚區分總肝管、膽囊管、肝臟邊緣、膽囊頸等位置之事實認定雖不同，然均導出被告行為有過失之結論。自兩份判決之論述方式可見，實務對醫療過失的審查模式仍是遵循修法前之常態，將醫療法第82條所規定之「逾越合理臨床專業裁量」直接作為違反注意義務審查之一環，並沒有如立法原意因修法而對醫療過失呈現兩階段審查，難認「逾越合理臨床專業裁量」要件入法實質上有變動醫事人員的注意義務程度，或有利行為人的責任減輕。
For different reasons, the first instance and the second instance judgment didn’t adopt the Medical Review Board’s opinion that the Defendant wasn’t negligent. Based on the different interpretations of the surgical records, both of them conclude that the Defendant was negligent, even though they differed in whether or not the Defendant had clearly distinguished the location of the common hepatic duct, the cystic duct, the edge of the liver, and the neck of the cystic duct when he mistakenly clamped the Claimant’s common hepatic duct during the surgery. As can be seen from the justification of the two judgments, the mode of examination of medical negligence in practice still follows the norm before the amendment of the law, and the “exceeding reasonable clinical professional discretion” stipulated in paragraph 82 of the Medical Care Act is directly used as a part of the examination of violation of the duty of care, and there is no legislative intent to present a two-stage examination of medical negligence due to the amendment of the law. It is difficult to recognize that the inclusion of the element of “exceeding reasonable clinical professional discretion” in the law has actually changed the degree of the duty of care of medical personnel or favored the conduct of the agent.
101-111
