【Criminal Law in Medical Malpractice】Inderal Prescribed to Asthma Victim During Health Exam: Change of Charge Brought by Private Prosecutor
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.