篇名

醫療器材故障之民事責任   免費試閱

並列篇名

Civil Liability for Medical Device Failure

作者
中文摘要

病人於醫院就診時發生損害,並非肇因於醫師醫療行為之過失,而係醫師所使用之醫療器材故障所致,因器材是否具備安全性並非其注意義務之範圍,故個別醫護人員不構成侵權行為,並可能因而造成病人之求償障礙。惟醫療機構內配置足夠、隨時可供使用、具備安全性之醫療器材,以及對醫療器材定時為保養、維護,本屬醫院應盡之契約上給付義務,若醫院疏於踐行上述義務,導致醫療器材故障,醫院即應對醫療契約當事人或受契約保護效力所及之人,負債務不履行之損害賠償責任。此外,醫療器材之維護、保養亦為醫院應盡之交易安全義務及組織義務,就此等義務之違反,病人得依侵權行為規定向醫院求償,且基於醫療器材故障屬醫院可掌控風險之範圍,應改由醫院就其已對醫療器材盡維護、保養義務一節負舉證責任,從而發生舉證責任轉換之訴訟法上效果。

英文摘要

When the patient went to the hospital for treatments, but some damage occurred to him, which not caused by the medical treatment of the doctor, but because the medical devices used by the doctor were malfunctioning. But the safety of medical device is not included in the duty of care of the physician who is engaged in medical treatment, so that the single medical staff don’t constitute any infringement; if the patient wants to ask the hospital to take the enterprise liability for the illegal act of the individual medical staff, there might be an obstacle to the claim. But the contractual obligation of hospital is that the hospital should not only be equipped with adequate, ready-to-use and safe medical devices, these medical devices should also regularly be maintained. However, if the hospital is negligent for the maintenance of these medical devices, and, as a result, the medical devices are malfunctioning when the physician engages in medical treatment, the hospital shall be liable for damages caused by the nonperformance of obligation to the medical contract parties or the person affected by the contract protection. In addition, the maintenance of medical device is also an obligation of transaction security and liability of organization to the hospital. According to paragraph 184 section 1 Civil Law, the hospital should be liable for an infringement in case of violation of liability of organization. Moreover, the failure of medical device is within the scope of controllable risk of the hospital, so the hospital should bear the burden of proof for the maintenance obligations of the medical device, and make the effect of the conversion of burden of proof in the procedural law.

起訖頁

152-158

出版單位
DOI

10.3966/241553062019120038011  複製DOI  DOI查詢

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