無侵權行為而有債務不履行用藥不當事例【寰宇醫事裁判】 試閱
A Case on Adverse Drug Reaction which is characterized by Non-Performance of Contract instead of Tort
原告A因子宮肌瘤等症狀而於被告醫院接受被告C醫師開立口服避孕藥處方之治療，惟長期服藥6年後竟出現意識障礙，經診斷為血栓症所致癱瘓等，故原告A與其配偶B起訴被告C等違反注意義務。原告主張其血栓肇因於系爭避孕藥，被告C與其他醫師忽略系爭藥物之禁忌症，更未進行必要檢查。法院認為，依系爭避孕藥之用藥說明，原告Ａ屬於因審慎投藥但風險仍可接受之類別，並鑑於系爭避孕藥因長期服用而累積血栓可能之效果，不排除原告A血栓症與系爭藥物無因果關係。然而，原告A之血栓症肇因於系爭藥物之最後一次處方，而該處方非被告C所開立，故原告主張被告C負侵權責任並不合理。至於被告C與其他醫師未依用藥說明書進行必要檢查，固然違反注意義務，則被告醫院基於診療契約而有債務不履行之責任。
Plaintiff A received a prescription for oral contraceptives form the physician C as the defendant at defendant’s hospital for symptoms such as uterine fibroids. However, six years after taking the medication, A developed impaired consciousness and was diagnosed with paralysis due to thrombosis etc. Therefore, A and her spouse, B, sued C and others for breach of duty of care. A claimed that her thrombosis was caused by the contraceptive pill in dispute, and that C and other physicians ignored the contraindication to the frug in dispute and failed to conduct the necessary tests. The court held that, according to the instructions for the controversial contraceptive, A belonged to the category of those who were prudent in taking the drug but still had an acceptable risk, and in view of the effect that the controversial contraceptive had the potential to accumulate blood clots due to its long-term use, it couldn’t be ruled out that A’s thrombosis wasn’t causally related to the controversial drug. However, A’s thrombosis was caused by the last prescription for the drug at issue, which wasn’t prescribed by C. A’claim of tort liability against C was unreasonable. As to C’s and the other physicians’ failure to perform the necessary tests in accordance with the drug inserts, it is clear that they breached the duty of care, and that C’s hospital was liable for non-performance regarding the contract for medical treatment.
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