The Determination of Medical Negligence: A Brief Comment on the "Medical Customs" and "Medical Level" in a Supreme Court Judgment
In medical malpractice suits, many courts around the world, including those in Taiwan, used to adopt the “medical customs” as the standard of care to judge the presence of negligence. However, in the common law system, currently the courts are using the “reasonable physician” standard, instead of “medical customs,” to determine professional negligence in medical litigations. A similar trend could also be observed in Taiwan: more and more courts in Taiwan are trying to differentiate between the “medical customs” and the “medical level,” a term adopted from the Japanese medical law which is conceptually close to the “reasonable physician” standard in the common law system. Recently, a landmark judgment of the Supreme Court in Taiwan reaffirmed that medical negligence should be determined according to the “medical level” rather than the “medical customs”.