治療錯誤與術後治療之訴訟標的【寰宇醫事裁判】 試閱
The Subject Matter of Action for the Malpractice and the Post-Operative Treatment
原告曾在被告診所婦科進行腹腔鏡手術之治療,術中造成腸部受傷,術後治療後又引發腸部梗阻症狀,因此必須重新進行手術。原告因此向主治醫師群主張請求損害賠償與精神慰撫金。經第一審判決敗訴、上訴第二審駁回後,原告提起第三審之法律審上訴。聯邦法院判決上訴判決部分廢棄並發回重新審理,指出精神慰撫金之請求權無從就系爭手術治療過成及其術後治療過程分立以觀,毋寧構成一個單一的訴訟標的,包括所有的治療錯誤。縱使在單一手術中有多個治療錯誤,也僅構成單一之精神慰撫金請求權,而非割裂自然意義之單一行為,各自為據。
The plaintiff had undergone laparoscopic surgery in the gynecology department of the accused’s clinic, which resulted in intestinal injury during the surgery. After the post-operative treatment, she got intestinal obstruction and had to undergo another surgery. The plaintiff therefore claimed damages and solatium from the treating physicians. After losing the first instance and the dismissing the appeal in the second, the plaintiff filed a revision. The federal court vacated the appeal in part and remanded for a new trial, noting that the claims for the solatium couldn’t be viewed as separate from the surgical treatment at issue and the post-operative treatment, but rather constituted a single subject matter of action that include all of the malpractice. Even if there are multiple malpractice in a single surgery, they could only constitute a single claim for the solatium, rather than series of conducts that separate the conduct in the natural meaning.
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