篇名

【醫療民事法】哈姆立克法急救案:住院醫療期間發生意外事故之契約與侵權責任   免費試閱

並列篇名

Act of Heimlich Maneuver: The Responsibility of the Contract and the Infringement during the Hospitalizing

作者
中文摘要

本文首先釐清分工之責任主體係為醫院經營者或部門管理者,而非接受分工指示之護理人員,再說明醫療常規、醫療慣例與醫護人員應盡善良管理人注意義務之標準有何異同。在司法實務上,「違反醫療常規即等同於有過失」之論述模式,不僅存有將過失之法律概念完全交由醫學專業判斷之疑慮,在個案中有不同醫療準則或醫療鑑定意見存在時,無醫療專業知識之法院更有誤讀醫療準則或醫療鑑定意見之風險。最後本文指出醫療民事責任學說與實務向來著重於個別醫護人員是否構成侵權責任,而較少有關契約責任之分析,倘病患意在對醫院求償,而非追究個別醫護人員之責任,由醫院單獨負契約責任之角度出發,一方面可避免病患求償之困難及醫師動輒得咎之困境;一方面透過充實契約法之義務內涵,可使醫院更有誘因增進其所提供醫療服務之水準。

英文摘要

It would be clarified that the subject who takes responsibilities is the manager of the hospital or the manager of departments, instead of the nursing staff who conceived instructions. Than the difference of the criterion between the medical standard, medical conventions and the duty of good administrator which the nursing staff shall obey would be explained. The justification that “against medical standard means fault” in legal practice leads to the doubt that the legal concept of fault depends totally on medical judgments. Furthermore, there were risks that the judges who don’t have any professional medical knowledge could misunderstand the medical standard or medical appraisal opinion, if there were different medical standards or medical appraisal opinions in a disputed case. Finally, it would be clarified that it was always lack of analysis of the responsibility based on medical contracts, while the infringement by single nursing staff was usually emphasized in legal practice. Starting with a discussion about the responsibility of the hospital as the response of the patient who claimed compensations to the hospital instead of single medical personal and nursing staff, this article would claim that the dilemma that it would be difficult for patients to claim any compensation and that physician would be stunned could be avoided on the one hand, and would make the hospital improve the quality of medical service on the other hand.

起訖頁

087-112

出版單位
DOI

10.3966/241553062018060020007  複製DOI  DOI查詢

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