醫療爭議「評析」之困境與「鑑定」之卡關
The Challenges of “Analysis” and the Impasse of “Expert Examination” in Medical Disputes
訴訟外的「醫療爭議評析」與訴訟上的「醫療爭議鑑定」，是近年來處理醫療糾紛非常重要的二種機制。然此二種機制，近來都出現一些困境有待解決。前者運用案數太少，恐難發揮立法目的及無從評估制度良否；後者則因刑事訴訟鑑定制度之修法，產生鑑定人是否應到庭接受被告詰問之爭議，引發鑑定委員停止鑑定制度運作之困境。本文嘗試提出若干紓緩困境、紓緩僵局之思考，期盼能拋磚引玉，促使各界共同思考，讓良法美意能發揮其功能。
“Medical dispute analysis” outside litigation and “medical dispute expert examination” in litigation have become two important mechanisms for resolving medical disputes in recent years. However, both mechanisms have recently encountered difficulties that remain to be addressed. The former suffers from the limited number of cases in which it has been utilized, making it difficult to fulfill its legislative purpose and assess the effectiveness of the system. The latter, following amendments to the expert examination system under the Code of Criminal Procedure, has given rise to controversy over whether experts should be required to appear in court and be examined by the defendant. This controversy has, in turn, led to a predicament in which members of the Medical Review Committee have suspended the operation of the expert examination system. This article attempts to propose several approaches to alleviating these difficulties and resolving the impasse, with the hope of stimulating further discussion and encouraging all sectors to reflect on these issues together, thereby allowing the good intentions underlying sound legislation can be fully realized in practice.
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