Observation on the Customary Medical Practice and Professional Clinical Discretion in Judicial Practice: Comments on Supreme Court Criminal Judgement
“Customary medical practice” is often used as the standard of medical malpractice in Taiwan. There had been fairly extensive discussions about the concept of “professional clinical discretion” after the amendment of Article 82 of the Medical Care Act. Actually the concept of “professional clinical discretion” already exists in the practice of court and medical review committee even before the amendment of above-mentioned article. “Customary medical practice” was used as a preliminary standard, and supplemented by “professional clinical discretion”. And after the amendment of Article 82 of the Medical Care Act, customary medical practice and professional clinical discretion both became elements of medical malpractice to alleviate the liability of health care professionals. Through cases discussion of the Supreme Court Criminal Judgement Tai-Shang-Tzu No. 6890 and the Supreme Court Criminal Judgement Tai- Shang-Tzu No. 4587, the authors try to further clarify the concept of customary medical practice and professional clinical discretion.