比較醫療法

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作者/交大科法所 秋元奈穗子 老師

In this course, we will look into the legal systems for health care, especially systems for dealing with medical accidents and access to healthcare. I will provide a taste of the discussion we will have in this course by briefly introducing the legal reforms on medical accidents in the United States and Japan.

Many people in Taiwan may have read news about medical accidents in hospitals and lawsuits against medical practitioners in newspapers, news on TV and journals. However, you may not know the particular legal issues involved in these “crisis” and how Taiwan can develop its policy to improve the situation.

News on medical accidents and lawsuit against them in Taiwan has become widely recognized by public especially since the late 2000s. Medical accidents themselves might have existed long before this movement, but the change in social recognition toward medicine has made this issue significant in Taiwanese society. The public awareness and increase in litigations led some developments in the mechanism of civil litigation procedure, in-court review system such as medical expert review and the Bill of the Medical Dispute Resolution and Medical Adverse Event Compensation Act proposed in Congress. However, the Bill failed partly because of the resistance from the medical profession for the fear that the act would encourage more disputes.

As (prospective) legal professionals who have interest in medicine or healthcare policy in Taiwan or students who are from field of medicine, what do you think is the next step for Taiwan to develop its policy? One way to think of better policy is to look at and compare the systems in other countries. Even though we need to be cautious to easily import the systems in foreign countries without regarding the difference in legal system or medical system, it is often worthy to look at what other countries do and how they succeeded or failed.

In the United States, criminal prosecutions against medical accidents don’t exist except for very extreme cases such as intentional murder or practice by intoxicated or drug-addicted physicians. On the other hand, the number of civil litigation is large and states have tried to limit the civil litigations (or the amount of damages) under the name of “tort law reforms.” At the same time, state medical boards have developed administrative procedures to examine accidents which lead administrative sanctions such as suspension of licenses. Furthermore, since some “repeater” physicians whose licenses are suspended move to other states to restart practice (in the United States, medical license is regulated state by state), federal government created the National Practitioner Data Bank to register information of lawsuits and damages paid and medical institutions and insurers can search information of physicians. Of course, medical professionals and hospitals themselves also have improved their peer-review systems inside the hospitals in order to prevent future medical accidents. Their discussions have some protection of confidentiality, which encourage honest discussions among colleagues.

Japan has had a very similar situation like in Taiwan, increase in the number of civil litigations and criminal prosecutions from the late 1990’s. After the period of discussions and some failure in proposing bill (which is also similar situation in Taiwan), in 2014, Japan enacted a law to establish the System for Examination of Medical Accidents. It mandates medical institutions to conduct examination of the cause of unforeseen medical accidents resulting death under some supervision by third party organization. It is purported to examine the causes to prevent future similar accidents and doesn’t involve compensation scheme nor relationship with criminal or civil procedures. Japanese medical and legal society as well as public are paying close attention to the performance of this new system.

Then, again, after looking at some examples of other countries, what do you think is the better way in Taiwan to solve the current problems to further develop the legal system?

This is only a part of the discussions we will have in this course. The course will introduce not only the developments of systems, but also the latest policy makings with practical perspectives.

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