Misdiagnosis of Ectopic Pregnancy: Judging the Criminal Offence Committed by Omission Courts and Japanese Courts
It is typically about the criminal offence committed by omission in the judgement of Supreme Court No. 1768 in 2019 and other relative judgements, but none of the judgments mentioned the difference between obligation of action and duty of care and even guarantor’s obligation. There were different opinions about whether the patient had broken the medical standard in the judgements. Furthermore, none of them had reviewed that it was obviously against the regulation of transfer that the patient wasn’t be transferred when he had the first appointment with the doctor. This study would focus on the reason for the difference between obligation of action and duty of care. Besides, it could be against the medical standard and caused the violation of duty of care in the issued case that the patient wasn’t transferred after two appointments with the doctor, since the doctor had the guarantor’s obligation on the ground of factually voluntary commitment. The elements for transfer according to paragraph 73 section 1 Medical Care Act would furthermore be explained. In addition, by discussing in this study about how to judge the causality for the criminal offence committed by omission, the hypothetical causality and the objective avoidability should be taken as the criterion instead of the theory of adequacy for active crimes.