特殊體質併發症之告知義務範圍及醫院責任之認定【醫事法學教室】 試閱
The Range of Duty of the Disclosure of the Complication of the Special Constitution and the Identification of the Responsibility of the Hospital
本件涉及醫師告知義務與醫院責任認定等問題。在告知義務範圍界定之部分，向來有基於專業原則與病人原則不同之標準，前者以理性醫師在個案情況下均會告知之範圍為斷；後者以病人就決定是否接受醫療行為所需之資訊為考量。如採後者，在界定醫師是否已遵循告知說明義務時，須以病人業已告知自己具有特殊體質，醫師始有就該特殊體質可能引發之併發症為說明之可能。在醫院責任部分，如有病歷欠缺之情形，無照護觀察過失之舉證責任應轉由醫院負擔；若醫院本身有人員配置或組織管理上欠缺之過失，病方亦可獨立對醫院為侵權責任之請求。
This case handles problems like duty of the disclosure and the identification of the responsibility of hospitals. There are by the range of duty of disclosure always different standards which are based on professional rule or on patient rule. The former depends on that a reasonable physician could disclose information in each single case, while the latter depends on information a patient require to accept a medical treatment. By defining whether a physician obeyed duty of disclosure by taking the latter as the criterion, the patient should inform about the special constitution. Therefore, it could be possible that the physician informs the patient about the possibility of complication which was caused by the special constitution. If it was lack of histories of patients, the burden of proof that there was no fault of care would be transferred to the hospital. If there were faults of staffing or managements to the hospital, patients could complain about the tort liability to it by their selves.
128-133
