篇名

主訴外之告知義務與刑事訴訟之舉證責任   免費試閱

並列篇名

Duty of Disclosure Outside the Main Claim and Burden of Proof in Criminal Procedure

作者
中文摘要

在刑事訴訟中「醫師未告知」之事實,固應由追訴犯罪之檢察官負舉證責任,但被告醫師倘主張曾告知並提出反證,其證明之程度應為何?是否與檢察官所負舉證責任相同?又醫療法第81條規定雖課予醫師告知義務,但告知之範圍為何?是否僅以病人該次求診之病情與主訴為限?倘若檢察官證明了「醫師未告知」且有「注意義務之違反」,刑事上是否必然成立過失致人死傷之罪責?有無其他構成要件需要考量?本文擬先舉一醫療糾紛案例說明告知義務及法庭之舉證,並提出有關醫師違反告知義務時,應如何探討其刑事責任之看法,希冀能助於醫療行為責任之釐清。

英文摘要

It belongs definitely to burden of proof by prosecutors during criminal procedure to prove the fact the physician didn’t disclose. How high could the grad of proving though be if the physician as the accused had disclosed the fact and hold a disproof? Is it similar with burden of proof by prosecutors? Even though the duty of disclosure by the physician is regulated according to Paragraph 81 Medical Care Act the range of disclosure is still unclear. Does it limit to the syndrome the patient asked and mainly claimed? If the facts that the physician didn’t disclose information and didn’t obey the duty of care have proven by the prosecutor, then does it lead definitely to the obligation of negligent causing death or injury? Are there any other element to be taken into consideration? A case would be firstly introduced in this essay to explain the duty of disclosure and burden of proof. Then an opinion about the physician breaking the duty of disclosure and whose criminal obligation would be presented. In so far would it be helpful for clarifying the medical obligation.

起訖頁

048-060

出版單位
DOI

10.3966/241553062020030041004  複製DOI  DOI查詢

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