Dissertations / Theses on the topic 'Medical malpractice liability'

This thesis examines the development of medical liability in Germany during its intense formative period from 1800-1945. The focus is on how the fault requirement in civil law was conceptualised and applied to liability for errors in the diagnosis and treatment of a patient. By focusing on the development of the law, and how it related and responded to changes in the nature of medicine, medical practitioners and healthcare over this period, this thesis uncovers a rich interaction between the legal and medical narratives of fault. In doing so, it offers an account of legal development where the law and lawyers were deeply embedded in, and influenced by, that broader social context. It identifies a gradual shift towards asserting courts’ independence from the medical narrative alongside greater willingness to question accepted practice, particularly in light of medical advances. The thesis says nothing directly about the closely related topic of liability for failure to secure the patient’s consent. We begin by mapping medicine and medical practice during this period. We then consider the evolution of ‘internal’ regulatory mechanisms and conceptions of error, in particular discussion over how to define a ‘Kunstfehler’ during the nineteenth century. We then unpack how the legal relationship between practitioner and patient was framed in nineteenth century Germany in criminal law, contract law and the law of delict before analysing the attendant standards of care and their application. Finally, we examine the changes wrought by the Bürgerliches Gesetzbuch and the growth of medical liability and technology in the first half of the twentieth century. The thesis offers a heavily contextualised study of legal development in a core area of private law and concludes that the pattern of development here was driven by acceptance of, and eventually reaction against, a concept of fault rooted in the medical discourse.

This dissertation seeks to argue that the doctrine of a loss of a chance should be adopted into South African law, specifically within the medical malpractice field. This doctrine allows for a physician to be held delictually liable for causing a loss of a chance of recovery or survival in medical misdiagnosis cases where a physician negligently failed to diagnose a curable disease, and the patient is thus harmed by or succumbs to such a disease. It is this writer's objective to demonstrate why such a doctrine ought to be introduced into South African delictual law as a secondary claim which is to be available once a claimant is unable to meet the traditional test for causation, and then evaluate in which manner this doctrine should be integrated into the law, keeping in mind South Africa's law of delict and the court's past practices in developing delictual principles. Two different approaches predominately adopted in other jurisdictions in order to overcome the concerns regarding how the doctrine disregards the causation standard will be discussed. The first approach, the 'substantial possibility' approach, calls for the relaxation of the causation standard in specific cases, whilst the second approach, the 'pure chance' approach, views the loss of a chance as an autonomous injury in and of itself. Each of the two approaches are evaluated in relation to South Africa's delictual law, as well as its judiciary's past practices in developing delictual principles. By doing so this writer will illustrate which approach is more beneficial and suitable within the South African delictual law context. It is this writer's contention that, in order to ensure the effectiveness of the doctrine, it would be wiser to introduce the loss of a chance doctrine by ways of wrongfulness, whereby the court could create a new harm which is wrongful in the eyes of the law if it holds that it is reasonable, in terms of public policy and the views of the community, to hold a physician responsible for negligently causing the patient to lose a chance of survival or a cure. By means of wrongfulness, the loss of a chance doctrine can therefore be integrated into South African delictual law on a strong fundamental foothold as to not impeach and threaten the effectiveness of the doctrine in future.

In regards to health care, the civil tort system serves to both deter negligent behavior on the part of the provider and compensate victims for losses which must include bodily harm attributable to negligent medical care. Due to the unique malpractice landscape that evolved in the United States, national tort reform has increased over the last several decades and a need for reliable data exists. This paper matches claims from the National Practitioner's Data Bank to an independent state data bank to determine is systematic, nonrandom differences between the observations exist. The paper found that systematic differences existed and their existence was implicitly proven in a paper published in 2013. This calls into question the current state of knowledge surrounding medical malpractice liability reform.

Seguro y Responsabilidad Patrimonial de la Administración presenta un detallado estudio del derecho de seguros y de la responsabilidad de la Administración Pública por las acciones y omisiones de funcionarios en la prestación de servicios públicos. Su objetivo es ilustrar cómo el seguro trabaja en el ámbito de la Administración Pública. La tesis se divide en tres partes y combina la exposición con el análisis crítico. En la primera parte, la tesis analiza brevemente el contrato de seguro y proporciona argumentos económicos para defender que el seguro es socialmente más beneficioso en Administraciones Públicas pequeñas que en Administraciones totalmente solventes. En la segunda parte, la tesis doctoral proporciona soluciones a los problemas que surgen entre la Ley de Contrato de Seguro y la regulación de la responsabilidad patrimonial de la Administración Pública. Finalmente, examinamos estas soluciones en un particular contexto: el seguro de responsabilidad civil por mala praxis médica que proporciona protección en el caso de que actos negligentes den lugar a algún daño o lesión a los pacientes en el ámbito de la Administración Pública.
Seguro y Responsabilidad Patrimonial de la Administración presents a detailed examination of the law of insurance and the Liability of Public Administration for the actions and omissions of civil servants in the provision of public services. Its objective is to illustrate how insurance works in the Public Administration. The thesis is divided into three parts and combines exposition with critical analysis. In the first part, the thesis briefly analyzes the insurance contract and provides economic arguments that the insurance is more socially beneficial in small Public Administrations than completely solvent Administrations. In the second section, the doctoral thesis provides solutions to the problems between Spanish law of insurance contracts and the regulation of Liability of Public Administration. Finally, we examine these solutions in a particular context: the medical malpractice liability insurance that provides protection in case of acts of malpractice that result in harm or injury to patients in the Public Administration.

Le système de santé français soulève de nombreux enjeux en soins primaires, tant en termes de répartition territoriale de l’offre de soins que de dépenses et de prise en charge de certaines pathologies. Le développement de la pratique infirmière avancée - qui amène un infirmier en pratique avancée à réaliser certaines tâches médicales, complémentaires ou substituables à celles du médecin, en première ou en deuxième ligne de soins – constitue une réponse à ces enjeux. L’objectif de la thèse est d’étudier le cadre de régulation de la qualité des soins délivrés par un médecin et un infirmier en pratique avancée. Elle se compose de quatre chapitres. Le premier met en évidence les enjeux du système de santé français auxquels la pratique infirmière avancée répond et les freins posés par la régulation française actuelle au développement de la pratique. Le deuxième chapitre discute, à partir de la littérature, du régime de responsabilité efficace pour dissuader le médecin et l’infirmier d’être imprudents. Le troisième chapitre est une étude théorique de la règle de responsabilité optimale à appliquer à la pratique infirmière avancée selon le mode d’exercice de l'infirmier. Le dernier chapitre restitue une expérimentation en laboratoire qui analyse l’effet de la collaboration entre professionnels de santé sur la qualité des soins en fonction du régime de responsabilité. La thèse démontre que la pratique infirmière avancée devrait être régulée par un régime de responsabilité pour faute qui alloue les réparations du dommage selon l’interdépendance des comportements de chacun des deux praticiens. En outre, le contrôle exercé par le médecin quand l’infirmier pratique de façon salariée amène à une meilleure qualité des soins. Enfin, l'expérimentation en laboratoire met en évidence, en présence d’une règle de responsabilité, une baisse de la qualité des soins liée à la collaboration interprofessionnelle. Ce résultat devrait conduire à développer la collaboration entre professionnels de santé avec prudence
The French health care system raises many issues in primary care, in terms of geographical distribution of health care supply, expenditures, and treatment of some pathologies. The development of the advanced nursing practice provides a response to these issues. An advanced practice nurse performs some medical tasks, which can be complementary or substitutable with those of the physician, and performed before or after the physician. The purpose of the thesis is to study the regulation of quality of health care provided by a physician and an advanced practice nurse. The thesis is divided into four chapters. The first chapter highlights the issues of the French health care system concerned by the advanced nursing practice and the limits created by the current French regulation on the development of the practice. The second chapter discusses from literature the efficient liability regime to deter a physician and a nurse to be careless. The third chapter is a theoretical study of the optimal liability regime to apply to the advanced nursing practice according to the type of nursing practice. The last chapter restitutes a laboratory experiment which analyzes the effect of collaboration between health care professionals on health care quality depending on the liability regime. The thesis demonstrates that the advanced nursing practice should be regulated with a fault-based liability regime which allocates liability according to the interdependence of each professional’s behaviors. Moreover, the control exerted by a physician who employs a nurse leads to a better health care quality. Finally, in the presence of liability rule, the laboratory experiment highlights a decrease in health care quality due to the interprofessional collaboration. This result should conduct to develop the collaboration between health care professionals with caution

As organizações de saúde, instituições de ensino, pesquisadores e profissionais têm investido em mecanismos que visam aperfeiçoar a assistência integral à saúde ofertada aos pacientes. Todavia, a assistência pode estar sujeita a falhas que podem acarretar danos indesejados aos pacientes, familiares e profissionais, além de prejuízos ao sistema de saúde. Acionar o Poder Judiciário é um dos mecanismos adotados para reparar o dano causado. Nos últimos anos, no Brasil, especialmente a partir de 2003, observa-se um crescimento das demandas judiciais relacionadas aos serviços prestados pelos profissionais da saúde, reflexo das mudanças ocorridas na sociedade e da ampliação dos direitos sociais e fundamentais. Justifica-se, assim, um estudo retrospectivo de casos julgados, com análise da jurisprudência do Superior Tribunal de Justiça (STJ), no período de 2003 a 2013, acerca das ações judiciais movidas em face dos profissionais de saúde e instituições de saúde no âmbito público e privado. Realizada analise quantitativa e qualitativa do conteúdo dos discursos dos Ministros do STJ sobre o tema erro médico, aplicando o método do Discurso do Sujeito Coletivo (DSC). O estudo das decisões proferidas contribuiu para a compreensão dos assuntos que têm predomínio na jurisprudência do STJ sobre o erro médico. O trabalho identificou o sexo feminino como o mais vulnerável aos supostos erros médicos e as especialidades médicas diretamente relacionadas com a saúde feminina como a mais acionadas judicialmente. Ginecologia/Obstetrícia (27,08%), Ortopedia (12,5%) e Cirurgia Plástica (10,42%) foram, respectivamente, as especialidades mais demandadas. Em conclusão, o estudo traz subsídio para as organizações de saúde identificarem possíveis áreas estratégicas de atuação, no sentido de implementarem ações para reduzir a probabilidade de erros médicos, identificando mecanismos eficientes para o acompanhamento e a racionalização de possíveis falhas e para atuarem, preventivamente, nas práticas de gestão visando reduzir danos aos pacientes, diminuir custos decorrentes das indenizações, possibilitando, uma prestação de serviço de saúde de maior excelência, qualificado e seguro no sistema único e no sistema suplementar de saúde.
Healthcare organizations, educational institutions, researchers and healthcare professionals have invested in mechanisms to improve the integral medical assistance offered to patients, but these assistance could have failures that may result in injury to patients, family members, and damage to system. One of the mechanisms to repair the damage is to claim to the Judiciary. In Brazil, especially since 2003, there has been an increase the lawsuit number related to medical malpractice, reflecting the changes in society and the expansion of social and fundamental rights. This is a retrospective study of judged cases by the Superior Court of Justice, in the period from 2003 to 2013, regarding the lawsuits against healthcare professionals and institutions in the public and private practice. Performed quantitative and qualitative analysis of the Superior Court of Justice Ministers speeches content, using the collective subject discourse method. Analyze of decisions contributed to understanding of the predominated issues in the malpractice lawsuit. The study identified the women as the most vulnerable to medical errors and medical specialties directly related to women\'s health as the most driven in court. Gynecology/Obstetrics (27.08%), Orthopedics (12.5%) and Plastic Surgery (10.42%) were, respectively, the most demanded specialties. In conclusion, the study provides subsidy for healthcare organizations identify potential areas of action to implement strategies to reduce the likelihood of injury to patients, decreasing costs and medical malpractice.

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Coordenação de Aperfeiçoamento de Pessoal de Nível Superior
In recent years, under the liability, grew too much in the number of indemnities demands against private hospitals, especially under the allegation of medical mistakes. The doctor makes mistakes because he is human and makes mistakes because he had a poor training, because it is lacking residence for all graduated from schools of medicine, because he works too and has no time for study and research. Whatever the cause, the fact is that their conduct affects directly the entities hospital because the medical services provided by hospitals derive from the performance of professional doctor, which is the only authorized to practice of medical act. Though there is a close relationship between the hospital and medical liability and it is treated differently between the doctrine and jurisprudence, for the first, in the field of liability and subjective, for the second, objective. It is not the objective responsibility out of the hospitals, but only when acting as simple hospital service providers; outside that event, the hospital responds by attesting that the doctor acted with fault, as well as its own doctor. The proposal of this work is reflecting on the responsibility of private hospitals, particularly on the nature and various forms. In rich, the issue goes beyond the material aspect, so goes through some procedural peculiarities, which directly influences the indemnities demands such as evidences and third-party complaint
Nos últimos anos, no âmbito da responsabilidade civil, cresceu em demasia o número de ações indenizatórias contra os hospitais privados, notadamente sob a alegação de erro médico. O médico erra porque é humano, erra porque teve uma formação deficiente, porque falta residência para todos os egressos das escolas de medicina, porque trabalha demais e não tem tempo para estudo e pesquisa. Seja qual for a causa, o fato é que sua conduta influencia diretamente as entidades hospitalares porque os serviços médicos prestados pelos hospitais decorrem da atuação do profissional médico, que é o único habilitado à prática de ato médico. Apesar de existir uma estreita relação entre a responsabilidade médica e hospitalar, encontra-se na doutrina e jurisprudência tratamento diferenciado, para o primeiro no campo da responsabilidade subjetiva e, para o segundo, objetiva. Não se descarta a responsabilidade objetiva dos hospitais, mas somente quando atuam como prestadores de serviços meramente hospitalares; fora dessa hipótese, o hospital responde mediante a comprovação de que o médico agiu com culpa, assim como o próprio médico. A proposta do presente trabalho é refletir acerca da responsabilidade dos hospitais privados, em especial quanto à sua natureza e diversas formas. De tão rico, o tema não se esgota no aspecto material, por isso pincela algumas particularidades processuais, que diretamente influenciam as demandas indenizatórias, tais como a prova e a denunciação da lide

碩士
臺灣大學
科際整合法律學研究所
98
As the advance of the medical technology, medical behavior is no more non-profit business but has been commercialized. People not only enjoy the benefit from the new medical technology, but also take the risks as high as traditional medical service. However, the relationship between doctors and patients fall behind the awareness of patient’s right. Thus, medical dispute will occur if medical behavior causes results people do not want. The litigant is used to dealing with the medical dispute through the court which brings new challenges for applying the law. The causes of medical dispute are mostly due to the short of communication between medical staffs and patients, the details of medical behavior have not been totally confirmed. The court investigates the personal responsibility of medical malpractice on the one hand and also tries to prevent medical dispute for saving the medical and society cost on the other hand. Thus, the regulations of civil duty are not only about compensating the damage but also reminding the medical staffs to prevent the same malpractices. It is not helpful, if the law only emphasizes personal regulations and responsibility. Because the medical malpractice events are frequently cause by serial systemic mistakes or organizational mistakes. Finally, the author considers that each relieve system for medical malpractice has pros and cons. The way to apply the legal regulations must be according to the environment factors such as economic, social culture…etc. No matter the legislation authority introduces the liability with/without fault or the statutory presumption fault, the relieve system adapts professional insurance or through the court for the compensation. If the social environment will benefit from policy is what we must focus on. Therefore, our further administrative and legislative regulations depend on comprehensively evaluation about all kinds of environmental and culture factors in our country.

碩士
東吳大學
法律學系
103
Over the past decade, medical malpractice cases have rapidly increased, resulting in the practice of defensive medicine. For the health care providers, this means the stagnation or regress of medical standards. For the patients, this reduces the chance for active treatment, and this is a lose-lose situation. This paper attempts to start with the characteristics of clinical medicine, supplemented with criminal laws and court judgments, and hopes to use objective imputation theory to balance the rights and responsibilities of both doctors and patients. Medical practice is considered a risk-averse altruistic behavior and is mainly divided into diagnosis and treatment. Medicine is a knowledge field based on statistics; therefore, diseases, diagnosis and treatment must have some exceptions. Also, medical practice is full of uncertainty due to the different expectation from patients and their families and the differences in the socio-economic backgrounds. Therefore, medical practice has the usual routine, as well as clinical discretion for the unusual part. In the practice of criminal judgment, the review of causal relation is in a dominant role. However, among the reviews based on causality, risk generation is more direct and clear while risk avoidance is relatively difficult. Medical practice is considered risk avoidance, but there exists multiple risks. Therefore, using causality to review medical practice is often seen as having several shortcomings. Using the objective imputation theory, starting from the perspective of risk, to review medical practice can be an extreme fit with its core value. The logic of judgment, which bases its core value in risk, appears not only in criminal cases but also in some similar civil cases. Risk increase mainly appears in criminal cases, while civil cases are mostly represented by loss-of-chance doctrine. The main differences between the two are that risk increase mostly explains the generated risks, while the loss-of-chance of survival is caused by the act of omission. Many medical disputes are considered not the pure act of omission, so using loss-of-chance of survival to view medical dispute is appropriate. The review of practice mostly replies on medical identification and makes it the leading role in evidence. However, medical identification itself still has many problems, such as: medical scission, improper interpretation of evidence-based medicine, unexcluded risks and incomplete identification process. Among medical disputes, risk avoidance and act of omission account for a considerable proportion and are different from common disputes. Therefore, this paper suggests that the judgment of medical dispute should use objective imputation theory to prudently assess risks in the medical practices if two aforementioned characteristics appear in the medical practice.

碩士
國立臺北大學
法學系
93
With the promotion of medical technology, the medical treatment as we know is facing new changes gradually. The medical provider is not only curing patients of disease but also making them more beautiful. Therefore, except for analyzing disputes over medical treatment in law, this thesis takes the fancy and hot cosmetic surgery as an example to modify the former views originally from general medicine treatment. This thesis is also a new attempt to combine medicine and law. The thesis is written from the view of a cosmetic surgery demander. It researches the whole process of the treatment vertically. The first chapter is an introduction. The second chapter initially talks about the concepts and categories of cosmetic surgery and then discusses some common questions of the medical institution, specialists and medical advertisements. The third chapter discusses the right -obligation relationships between doctors and patients. Because the cosmetic surgery has no urgency to heal diseases, we should take a stricter standard on doctor’s inform obligation in explain. In chapter four, we explore the medical behavior and liability of cosmetic surgery. This chapter is mainly discuss with the questions of contract liability, tort liability and Civil Law §191-3. After revising the compositions of strict liability, we suggest that Civil Law §191-3 is not suitable because the lack of reasonable and practical foundation. In Chapter five, the suitability for medical behavior of The Consumer Protection Law which was proclaimed in 1994 has been a critical dispute in academic field and practice. However, after the modification of Consumer Protection Law in 2003 and medical law in 2004, the problem has been solved or not? In my opinion, the above modification of law was in vain because it couldn’t solve the basic problem. Besides, we can find the compromised view is probably the greatest common denominator to solve this problem. Consequently, the thesis tries to build a new distribution of liability structure by referring to several scholars’ opinions. And divide medical behavior into “general medical behavior” and “productive medical behavior” which is suitable for Civil Law and Consumer Protection Law separately. After reviewing the reason of strict liability and Law and Economic Analysis, we consider the new-built structure would be a feasible solution and hope it could be used by academics and practice when the law to be explained and modified. When we solved the medical liability completely, the sixth chapter extended to deal with medical disputes. At first, we discuss the origin and types of medical disputes and provide several way of prevention. Moreover, the mechanism of dealing the medical disputes can separate to non-litigation and litigation. The thesis not only analyzes the current design and future plans of medical dispute but also criticizes the lack and difficulty it faces. Finally, this thesis provides some dealing suggestion to medical dispute which could be a direction to improve in the future.

碩士
銘傳大學
法律學系碩士班
99
The Research on Civil Liability of Medical Malpractice By Hsiu-Shen Tai Master of Laws Ming Chuan University, Taiwan, R.O.C.,2011 Associate Professor Ming-Huei Chen In the last decade, due to the urbanization and industrialization of society, and the advance of medical science and technology, the possibility of curing a disease has increased. Meanwhile, the risks of receiving a treatment has also increased. Patients are even treated as an object of medical processing. Because of the national health insurance system and the popularization of medical care, medical care can be accessed with only a small amount of cost. The treatment rate therefore rises. In consequence, medical malpractice increases. Medical science is professional. Therfore, the most convenient way for a patient to solve an medical dispute is to raise a criminal prosecusion. The patient then files a civil claim with the evidence investigted by the prosecutor. Main reasons for such an approach is that the evidence could be investigated by the prosecutor or the court in the process of a criminal prosecution. In the speculative and stressful medical relationship, there are many unequal elements. doctors usually have advantages over a patient in a medical dispute. For example, patients may have disadvantages in such a lawsuit due to the complexity of proving the evidences of right violations. The thesis tries to find an approach to solve disputes and spread risks with the interpretation of relative laws and regulations, and foreign theories, examples. And therefore compensate the patients in a medical dispute and provide the security and interests for the doctors. Medical disputes could be solved in a fair manner.

碩士
東吳大學
法律學系
106
The aim of the thesis is to investigate the issue of civil liability arising from medical disputes. The scope of research is limited to physicians who are often to cause medical disputes, and it is responsible for medical malpractice, additional the discussion of the responsibility of medical institutions. National Health Insurance was instituted in 1995, which enable residents living in remote areas, even the poor; everyone in Taiwan receives the same medical service. Most of the people has been satisfied with the National Health Insurance, one reason for the high satisfaction is the premium and copayment rates are low, easy accessibility is another reason. In Taiwan, anytime you wish to see a doctor, you can, even in the evenings. Along with the increasing of medical litigations and the awakening of patients’ rights, medical disputes are potential risks that all of the doctors have to face, the accompanied work stresses, frustrations, financial risks and reputational damages are too much for doctors. Besides, under the existing law, doctors wince from invoking medical malpractice litigation because it is a costly and time-consuming process. In medical disputes, often the doctor-patient relationship has actually ended; the obscure negotiation and litigation processes have severely undermined the mutual trust between patients and doctors. Patients and their families feel that they are not protected by a fair court system, and often doubt of hospital’s reconciliation effort. Patients and their families want an explanation and compensation; they often adopt criminal action against doctors in judicial practice. With the judicial intervention, they believe it’s more efficiently cause stress on doctors, although most medical disputes would not precede to trial, still bother doctors a lot. The physicians tend to view part of the patients' complaints as either financially-motivated or triggered by post-trauma emotional instability. The lack of trust makes patients and their families prone to immediately relate the misadventure with malpractice, and refuse to consider the inherent risk in all medical treatment, therefore, the physicians begin to adapt more protective medicine in order to avoid these responsibilities, which leads to defensive practice and increases both direct and indirect medical costs. The increase of medical malpractice litigation in Taiwan may have indirect effects on health care if defensive medical practices lead to more unnecessary tests or avoidance of high-risk patients. Medical malpractice litigation also influences physicians’ choice of specialty. A survey showed that over forty percent of medical students preferred become dermatologists, because they have a lower medical malpractice rate. If the trend continues, it is result in a shortage of physicians in high-risk specialties. The Executive Yuan passed the “Medical Accident Prevention and Dispute Resolution draft Law" on April 12, 2018, in order to solve the medical disputes, and to establish medical institutions to communicate with patients as soon as possible in every medical accident. I hope though this draft; medical disputes can be decreased through caring for patients and the mediation procedures. The goal is to improve the relationship between physicians and patients and create a harmonious medical environment.

博士
國立中正大學
法律系研究所
104
The research motive of this paper is due to over the past few years of medical disputes in Taiwan. The dispute between physicians and patients, and therefore thinking from the research of this thesis, as a possible soluting way to slove the dispute between physicians and patients.The paper is divided into eight chapters with medical negligence for damages as the core concept. Chapter I is "Introduction". Described research motivation and purpose, scope, methodology, and explore the relevant literature, research processes. Chapter II is "The liability of medical negligence and the responsibilities of connotation " . About explanation of concepts of medical negligence and responsibilities. Chapter III is "The medical ethics and the obligation of physician –The center of the doctors’ informed consent for the patients’ autonomy ". Explained the legal obligations of physicians to, and relationship with physicians’ ethics. Chapter IV is " The relationship by the reason and result of medical negligence and the damage ". Indicating the physician’s negligence caused damage to the relationship between the reason and result. Chapter V is" medical negligence born of damages and identification of the burden of proof ". the appraisal and burden of proof between the medical negligence and the damage. Chapter VI is" Preventing the regeneration of the defensive medicine - Establishing the outside litigative resoluting mechanism of medical dispute (Alternative Methods of Disputes Resolution, referred to as the ADR)". The way to resolve medical disputes , and with reference to the methods of operation abroad. Chapter VII is "Legislation proposal".Tto introduce the newest trend of legislation and to draw conclusions. Chapter VIII is " In conclusion".Providing personal experience for many years involved in medical disputes practice civil and criminal proceedings, be considered the main focus of medical dispute resolution or a point of contention, with reference for academics and practitioners, in order to achieve medical negligence lawsuit dispute solution.

博士
國立臺灣大學
法律學研究所
99
This study is based on medical contract liability that has long been ignored in an attempt to build a new civil liability system and correct civil litigation results in medical malpractice. In light of the fact that this study sets its tone to provide Taiwan with a solution to its local civil actions for medical malpractice, it begins with empirical analysis of civil liability in medical malpractice lawsuits and identifies problems with the present system in the handling of medical malpractice cases. Then, this study explores whether the contract liability or the tort liability can help better protect the rights of patients in civil cases of medical malpractice from the perspective of today’s civil liability. Meanwhile, English and German comparative law is quoted in this study, along with practical insights and observation of contemporary practices in Taiwan. The conclusion is that contract liability works better in the protection of patient rights. Continuing the attempt to reconstruct the medical contract liability, this study focuses on three aspects. First, it adjusts the dualism of “intended acts or negligence are attributable” which has always been an important element in contract liability to the monism that “breach of contract obligations comprises contract liability” through interpretation of the contract, and this reduces the risk in burden of proof associated with a large number of elements required for contract liability to sustain. Another long-standing prerequisite for contract liability to sustain is the element of causation which this study has removed. Finally, it introduces Japan’s contract binding force and the theory differentiating obligation of means and obligation of result from France, producing the scope of application with the central train of thought being “self-government contract freedom in private law = the doctrine of party autonomy = contract binding force on the parties = imputation of causes = imputation of causes established = breach of contract obligations = contract liability sustained.” However, this study holds that such scope of application can only be applied in non-mandatory medical settings. Last but not least, the contract liability for medical malpractice constructed in the present study differs from the conventional civil contract liability in that: 1. In Taiwan, the prerequisites for civil liability to sustain have always been based on dualism for both contract liability and tort liability; however, this study finds that there may be room for monism under the existing regulations. 2. In the handling of civil litigations in the case of medical malpractice, obligation of result-oriented medical contract obligations are in favor of plaintiffs for prerequisites of liability to sustain compared to the obligation of means-oriented ones. 3. It requires reviewing the self-government contract freedom principle of the private law and the scope of contract binding force on the parties before determining whether a medical contract falls in the category of obligation of means or obligation of result. If the parties has committed to fulfillment of the results, imputation of causes is strict and hence the interpretation favors obligation of result. Therefore, obligation of means and obligation of result are relative concepts. 4. Contract binding force on the parties expands contract interests (payable ones) and the scope of compensation. Nevertheless, obligation of result seems more feasible in actual practice.

博士
國立政治大學
風險管理與保險研究所
97
In this paper, we study negative outcomes associated with the delivery health care, which are collectively referred to as “medical incident”. This is further divided into “medical negligence”, “medical mishap” (also known as “medical disaster”), and “medical accidents”. Medical injuries may be in consequence of medical negligence or otherwise, that is they may be with fault or without fault. In this paper we further medical injuries without fault into three categories: (1) liability regardless of fault, (2) liability without fault, and (3) no legal liability. Notably, we refer to “no-fault liability” as “liability regardless of fault” to better distinguish its legal implications with respect to other kinds of medical injuries without fault. Predictable complications and side effects of medical treatments are considered “medical mishap”; unavoidable natural death or nature course of disease have “no legal liability”. The burden of duty can be divided into three categories: indemnity, compensation, and relief. Indemnity is secondary to the violation of rights leading to injury and damages. Compensation is set by appointed experts and given in direct consequence of the occurrence of the injury, and is independently of the determination of legality and contract fulfillment. Relief specifically refers to financial assistance given by government entities to those in need. At-fault liability follows medical negligence, and as such indemnity is given for reparation of damages and the prohibition of gains from the provision of negligent medical care. Causes of liability with no fault include medical mishaps and medical accidents. In these cases, the physician has fulfilled duties as medical professionals and in so doing have done their best to prevent medical incidents. Nevertheless due to circumstances beyond control, medical injuries occur. Because there is no negligence on the part of the physician, these losses are ideally dealt with by the governmental agencies. Liability regardless of fault attributes liability based on risk alone. Under this system, for all medical incidents, whether or not they are the consequence of negligence, the victim receives relief at a pre-determined amount. This relief serves as the basic protection of patients. Since the physician as the chief medical care provider is also at the center of medical risk, by principles of risk management, liability regardless of fault should in addition be organized as medical incidents compensation. The three forms of duty burden–indemnity, compensation, and relief–can be organized either as foundations or as insurances. We argue that duty burden for medical negligence is best managed by professional liability insurance to provide compensation to the victims. Medical liability regardless of fault is best managed by compulsory medical provider liability insurance with additional medical incidence compensation fund to provide at least a basic level of compensation to the victims. Medical liability without fault is best managed by medical risk relief fund for assistance for the victims. In conclusion, in this paper we analyze various forms of liability and management of medical risks, and propose the use of professional liability insurance for medical injuries with fault, compulsory liability insurance for liability without fault, and relief fund for liability regardless of fault, in the setting of medical incidence. This provides a comprehensive, three-layered solution to the emerging problem of proliferation of medical incident cases in the courts. The first layer is incidence compensation, directed at all medical incidents, via compulsory medical personnel liability insurance regardless of fault. The second layer is risk relief, directed at medical mishaps and medical accidents, via risk relief funds. The third layer is damage indemnity, directed at at-fault liability, via physician professional liability insurance, to fulfill the victims’ damages.

碩士
國立中正大學
法律學研究所
101
Under the diverse development of medical practice, division labor for teams has become one of the most important characteristics of modern conducts of medical practice. The medical personnel or teams under “Medical Teamwork” provide horizontal or vertical services according to their specialties in the identical or different medical process. They divide labor and cooperate with each other to provide more professional and safer medical quality. “Pharmaceutical practices” in medical teamwork is known as the most direct and relevant medical behavior to the core of medical practice. There are possibilities and necessities for participation of pharmaceutical practices at any phases during the medical process. However, in the event of medical malpractice while the damage is the result of pharmaceutical negligence, the pharmacist with closest relation and most relevance to pharmaceutical malpractice will collectively become the possible objects of criminal prosecution, which is inevitable result for pharmacist in the role of medical teamwork. Additionally, news on medical disputes and medical malpractice litigations has gradually drawn intense attention and extensive discussions from the public under the reporting of media coverage. Regardless of the reasons behind such malpractice, the repeated medical negligence and dispute incidents not only result in the tense and distrust between the hospital-patient relationship, but also produce extensive pressure and burden on the medical staffs and the pharmacists. The majority of medical practice is started out with remission or curing disease, while most medical staff would not wish or intentionally injure the patients, therefore in the event of medical disputes, it is rare to see medical staff taking criminal liabilities for “Intentionally.” “Negligently Causing Injury” or “Negligently Causing Death” still account for the majority of criminal liabilities, which is no exception for the pharmacist. Nonetheless, due to the diversity and distinctively in pharmaceutical practice, most pharmaceutical malpractice is caused by multiple negligence in different phases. Therefore, how to validate the concepts and liabilities in criminal negligence for pharmaceutical practice, identify the scope and standards for the obligations in pharmaceutical negligence, and the liability attribution for negligence in personnel during the incident of pharmaceutical negligence, in addition to whether if there is “Joint Principal Offender”, and “Principle of Reliance”, are all issues merit further study and clarification when confront with complex modern medical environment. With basis on the experience of pharmaceutical practice, the author intends to validate the concept and liability of criminal negligence in pharmaceutical practice while identifying the scope and standards of obligations in pharmaceutical negligence through a review on the categories and patterns of pharmaceutical practice in the medical teamwork. Consequently, the pharmacists or other medical staff can identify the liability allocation and attribution more clearly, to provide legal guidelines and reference for medical practice. Additionally, the author expects to draw attention from the medical field through this paper by attracting more people to commit in the study of laws related to pharmacy, thereby to provide more incisive interpretation and reference for the legal field of medical treatment in Taiwan, creating a triple-win environment for the medical field, laws and patients.

碩士
國立臺灣大學
科際整合法律學研究所
106
Medical negligence is the core concept to determine either civil or criminal liability for medical malpractice in Taiwan. In medical litigation, many courts in Taiwan usually adopt the“medical custom”as the standard of care to judge the presence of negligence. Recently, a landmark judgement of the Supreme Court in Taiwan reaffirmed that medical negligence should be determined according to the“medical level”rather than the“medical custom”,“medical custom” was only one of the factors to judge the presence of negligence. However, the standard of“medical level” is an unpredictable concept. What actually constitutes “medical level” ? In this article, we would explore the content of“medical level” by empirical legal studies in order to know if it is more fair than“medical custom” and improve its prophylactic function of Civil Code. The result shows that the civil courts under the standard of “medical level” consider not only medical custom but also other factors such as medical inform, organizational defect and clinical discretion. In medical personnel aspect, the civil courts determine medical negligence by medical custom, medical inform and clinical discretion; In hospital aspect, it determines medical negligence by organizational defect. It shows that the standard of“medical level” more guarantees patient safety than the standard of“medical custom”. However, the standard of care is too high in the doctor of clinical discretion. The Article 82 of the Medical Care Act was revised last year. Through the result of empirical legal studies, we find the newly revised regulation acknowledges judicial practice and proclaims precedents in writing, it still keeps the same standard in civil liability. Hopefully, this study can shows clearer concept of“medical level”.

碩士
東吳大學
法律學系
97
With an eye to the increasing Medical Malpractice Disputes, the relationships between Medical Doctors and patients are more and more intense. The phenomenon becomes common problem of civilized countries around the world. Our country is gradually stepping toward a developed nation and facing the same difficult situation. And as well known, the consequences of increasing Medical Malpractice Disputes (or intense relationships between Medical Doctors and patients) includes: the aspirations of the workers devoted to medical industry decrease, the medical-practice technology stops to progress, and the medical doctors resort to defensive medical practices. All the consequences described above are very detrimental to the medical industry which focuses on medical doctors, as well as to the health welfare of the crowd. In order to face and solve the problem, the research of the thesis tries to find out the effective solution. First, according to the nature of medical practices which are usually uncertain and unpredictable, we discuss the benefits and defects of the four main medical policies: Compulsory Mediation System, Decriminalization of Medical Negligence, Presumed Liability of Medical Behavior or No-Fault Liability of Medical Behavior, and No-Fault Compensation System of Medical Accident. After that, we illustrate why and how Compulsory Medical Doctor's Liability Insurance System is necessary to deal with the dilemma, and then propose the designed content and contractual mechanism of it for future further research. At last, we make criticism and analysis of the draft of Compulsory Medical Practice Liability Insurance Act proposed by the Legislative Yuan of Taiwan in 2005（exactly the same as the version of the draft proposed by the Legislative Yuan of Taiwan in 2003）, and propose some suggestions of its revision. In the end of the thesis, we provide the conclusion of the subject discussed in the thesis (besides urge to establish Compulsory Medical Doctor's Liability Insurance System, also partially emphasize on continuously prevention of medical malpractice and medical injury). The thesis comprises five chapters as described below： The First Chapter： Describes the definition and characteristic of medical behaviors, as well as definition and classification of medical doctors. Then points out the motive and the purpose of the research, and presents the questions about the subject of the thesis. The Second Chapter： Discusses the benefits and defects of the four medical policies: Compulsory Mediation System, Decriminalization of Medical Negligence, Presumed Liability of Medical Behavior or No-Fault Liability of Medical Behavior, and No-Fault Compensation System of Medical Accident. The Third Chapter： Illustrates how Arbitrary Medical Doctor's Liability Insurance System isn't enough to resolve the problem, and analyzes the constitutionality and functionality of Compulsory Medical Doctor's Liability Insurance System. Then proposes the suggested content of Compulsory Medical Doctor's Liability Insurance System and how the contracts constitute. The Forth Chapter： Criticizes and analyzes the draft of Compulsory Medical Practice Liability Insurance Act proposed by the Legislative Yuan of Taiwan in 2005, and makes some suggestions of its revision. The Fifth Chapter： Draws conclusion of the subject of the thesis.

碩士
國立臺北大學
法律學系一般生組
101
The aim of the thesis is to investigate how to fill the damage having occurred in medical procedures. According to statistics, there is a phenomenon that the numbers of medical malpractice has been increasing year by year in Taiwan. Medical malpractice means a medical injury occurred in medical procedure, and the doctor and the patient both dispute the responsibility for the injury caused during medical procedure. Traditionally, civil liability of medical malpractice is based on fault liability, which concerns the issue of how to distribute the burden of proof in those medical lawsuits, as well as how to determine the medical negligence. However, there is a dispute as to whether the medical services should apply the services strict liability of Consumer Protection Act after Consumer Protection Act enforce or not. Furthermore, another dispute over whether medical services should apply the liability of dangerous activity or not (article 191-3 of Civil Code). The above is worthy of deeper research. Finally, the system mentioned recently is medical no-fault compensation system, it may be complementary with the traditional civil libility system. Therefore, further investigation toward this issue is a must. In addition, main references in this thesis are academic books, journal articles, dissertations, and practical judgments from both Taiwan and foreign countries. Other parts are supported by foreign legislation cases, such as Japan and the U.S. as comparative law references. This thesis is divided into six chapters, the first chapter is the introduction. The second chapter is about the medical practice、medical malpractice and medical relation, and clarify related concepts. The third chapter is about medical civil liability provisions, introducing the civil law liability because of medical acts. The fourth chapter is about the judgments of medical negligence, and sort out the judgment criteria of medical negligence, including customary medical practice and medical guideline, as well as the theory of Japanese medical standard and the United States reasonable physician standard care. The chapter five introduces medical no-fault compensation system and evaluates whether the feasibility of the system can be applied under current circumstances. The sixth chapter is the conclusion that summarizes the mean ideas of this essay.

Thesis (Ph. D.)--Florida State University, 2004.
Advisor: Dr. Kevin Eastman, Florida State University, College of Business, Dept. of Risk Management and Insurance. Title and description from dissertation home page (viewed Sept. 22, 2004). Includes bibliographical references.

碩士
國立陽明大學
公共衛生研究所
101
英文摘要 Background and Purpose： Should criminal liability of medical malpractice cases be limited only to those defendants who committed gross negligence? This question has been heatedly debated in Taiwan recently. Those who disagree, such as the Department of Justice, argued that the concept of gross negligence does not exist in Taiwan’s criminal legal system, and that a hasty amendment to it would unnecessarily impact the entire criminal law system. To test the truth/false of such argument, this study attempts to search for the concept of gross negligence by comprehensively analyzing all affirmed guilty verdicts of medical malpractice cases. Method： Starting from an established database consisting of all medical malpractice cases tried by Taiwanese courts at all levels during the period of 2002~2007, this study first located and trace all guilty verdicts up to the date of October 31, 2012 to build up a new database consisting of affirmed conviction of guilty medical malpractice cases. Then, this study conducted a thorough content analysis to determine whether the judges have implicitly utilized the concept of gross negligence in their guilty decisions. Findings： During the period of 2002 to 2007, courts at the three levels in Taiwan had heard a total of 250 criminal cases (a total 453 verdicts) of medical malpractice. Among the 250 cases, 51 cases (a total 163 verdicts), including 57 doctor-defendants, were affirmed guilty conviction by the date October 31, 2012. Among them, 16 cases (16 verdicts, 18 doctors) were affirmed in the trial court level, 23 cases (89 verdicts, 24 doctors) were affirmed in the court of appeals level, and 12 cases (58 verdicts, 15 doctors) were affirmed in the supreme court level. From the occurrence of an adverse outcome (death or injury) to the affirmed conviction of guilty, a case underwent 2145 days (approximately 6 years) of litigation on average. The minimum term for a guilty defendant was 40 days of detention, and the maximum term was 14 months of imprisonment. Content analysis of all the guilty verdicts cannot find the concept of gross negligence either in reasoning or in the length of sentencing. Among all the 51 affirmed guilty convictions, only 6 cases might involve gross negligence. Conclusion： Criminal litigation over medical malpractice is time-consuming with little effect on punishment. During the period of 2002-2007, no doctor-defendant accused or prosecuted were eventually imprisoned. From affirmed guilty convictions, it is impossible to induce the concept of gross negligence.

碩士
國立陽明大學
醫務管理研究所
91
As the economy develops, the privileges that patients enjoy rise. Their health care needs are being met and much emphasis is put on their rights of being protected. On January 11th 1994, the consumer protection law which aims at the improvement of safety and living standards was announced. Industrial managers cannot be remitted from damage liability even if they cam prove that there is nothing wrong in the products or services provided. This regulation assumes the equality of service and product. Service is a concept that is abstract and hard to define. The consumer protection law in Taiwan does not give a definition to this concept. As a result, there are not only debates in the researches but also diverse perspectives in the practical verdicts of the court. In addition, the intended neglect of law makers has caused argument on its legal propriety, and this effects the doctor-patient relationship tremendously. There is usually contract relation existing between the doctors and the patients as providers and receivers. Therefore the service responsibility has to be regulated by the contract obligation. Its counterparts in traditional civil science are such as contract of mandate, contract of work, and contract of employment. Breaking the law leads to failure of carrying the debt; doing harm to others may cause tort. According to the consumer protection law, from article seven to article ten, which defines the tort obligation, the attribution rule is prone to be strict. Due to the high risk and uncertainty, the most debatable issue is strict liability among such problems as whether the medical practice is subjected to the consumer protection law, whether it is a kind of service, whether doctor-patient relationship is one of consumer behaviors, and whether the doctors or the institutes are the industrial managers. Concerning the medical malpractice of shoulder dystocia at Mackey Memorial Hospital, both of the fact courts of civil judgment in Taiwan Taipei District Court and Taiwan high court applied the consumer protection law article seven. They both included the medical practice in the category of service responsibility and required the hospital to take strict liability. This judge caused panic, strong reactions, and broad discussions and debates in the medical field. The legal judgment of the Supreme Court, however, disposed the original verdict given that reasons are not setforth, i.e. the original verdict was illegal without appropriate reasons and not because of improper applications of the law. This research gives analysis and explanation according to the district, appeal, and supreme judgment about the following issue：the ambiguity of legal propriety between the specificity of medical practice and strict liability. It concludes with the suggestions concerning the question that medical practice is supposedly regulated by the consumer protection law or the traditional civil code.

碩士
國立高雄大學
法律學系碩士班
96
In recent years, medical disputes and the legal proceeding cases increases day after day in Taiwan. The justice, right and wrong, or the truth is unclear and gloomy among medical human rights, judicial human rights, human rights of patients, human rights of doctors, human rights of nurses, and so on. Is there eternally any common truth in the continuous conflict among the medical-legal relation, right, duty and the correlative liability? The life science and the life are variable and changeable, they are necessary and worthy for us to observe carefully the causes and effects, and to find a proper way of wisdom. To find the truth and to perform the justice are essential not only in medical profession, but also in the application and enforcement of the law. Is the principle of cause and effect eternally the common truth of the justice performing, the morality, the religion belief, the Buddhism, the medical practice, and the legal profession? The civil legal liability and medical damages of medical malpractice, in the tortious responsibility as well as in the medical contract, are based upon the identification of the causal relation as a premise, which confirms the damage compensation responsibility according to the cause-effect relation between the medical behavior error and the medical damage. In addition, there are two major functions of the causation in torts. The one of them is to identity the accomplishment of liability; the other function is to decide the scope of the damage compensation. Substantially three factors must be taken into account in the medical malpractice liability as the following. Firstly, the most important factor is the behavioral analysis: Is the violation behavior stemming from intention or error, breaching the duty of care, creating the unnecessary risk, disobeying the experience rules, invading rights or interests of the victim. Secondly, the cause in fact, the factual causal relation: to clarify the cause-effect relation in fact between the invasion behavior and the damage. Does the behavior result in the damages of the physical health or the property, and does it contribute to the causal strength in accordance to the principles of experience rules and the logic principles? Thirdly, the cause in law, the legal cause: to evaluate the cause-effect relation in law between the invasion behavior and the damage result. Once if the factual cause were identified, the method and extent responsible for the damage compensation could be decided, in case of no immunity from the compensation responsibility under the legal policy or other values consideration. Under the comparative research study and observation analysis among Germany, Japan, England-America and Taiwan laws, there are a lot of criticism to the practical judgments as well as to the present causation theories regarding civil liability and medical malpractice. What is the ideal legal trial model applying the appropriate causation determination? In jurisprudence, cause and effect in social sciences could be inducted to the following two points of view. The first one is that no matter indicated clearly or implied, any kind of explanation to the causation could take a certain principle as a premise. Secondly, the relation between cause and effect is not absolute, but a constant rule. How to enhance the objectivity of legal interpretation? There are two ways of resolution, one is focused on the logic analysis method, and the other is the research technique of experience science, which fully absorbs the research results from the law sociology, the law psychology, the legal system history, legal experience sciences and so on. Only if we enhanced the factual factors, we could enhance the objectivity of legal interpretation. In empirical study, legal researchers are used to making judgment by subjective impression, which is risky in doing research or in policy-making, according to the empirical legal study associated with crime or torts. It is more appropriate and necessary to do legal research or to make policy through empirical studies based on facts and evidences. This article is centered on the causation and liability of medical malpractice and medical accident. It is organized by literature survey method, comparative research study, and analytic induction from the domestic and foreign theories associated with the principles of experience rules and logic. Furthermore, we deeply pondered again over the theory of causation in order to enhance the objectivity of legal interpretation, by means of jurisprudence, logic, experience science, analytic philosophy, as well as critical thinking. Originally this article also agrees the two-stages-theory (the Dichotomy Theory) of causation and liability, that is, the causation can be divided into the factual causation and the legal causation. The factual causation should be judged by the medical science, while the legal one should be judged by the legal regulations with the help of the related causation theory, which could be rationally adopted in medical malpractice. In addition, according to the past academic theories, present situation, and future vision, I predict that evidenced-based medicine (EBM) and empirical legal study (ELS) will significantly impact on the causation and liability of medical malpractice in Taiwan. Therefore I try to propose a hypothesis which was based upon legal research method and medical research method, including logic deduction method, induction analysis method, experience science, medical diagnosis and treatment model, evidenced-based medicine and empirical legal study. That is a new three-stages-theory (the Trichotomy Theory) as the following: Firstly, mechanism analysis of medical behavior, (BMA). Secondly, factual cause analysis, cause in fact (FCA). Thirdly, legal evaluation and legal adjustment, legal causes, (LEA, legal evaluation adjustment). The structure of this paper is designed and focused on the causation and liability of medical malpractice as a systematic interpretation as the following: Chapter I introduces the writer’s initial motives, purposes, methods and the range of this research. Chapter II defines the concepts of the characteristic terms, such as medical behavior, medical guideline, medical accident, medical error, medical negligence, medical malpractice, medical dispute, medical litigation, medical liability, duty of care, and breach of duty of care. Chapter III describes and analyzes the varieties of civil liability resulting from medical malpractice, such as contract liability, torts, consumer protection law, strict liability, burden of proof, and informed consent. In chapter IV, I review the various concepts about the causation, analyze the associated causation theory in Taiwan, and compare the different foreign academic causation theory, such as German, Japan, and the United States. In chapter V, I repeatedly studied over the theory of causation in order to enhance the objectivity of legal interpretation, by means of jurisprudence, logic, experience science, analytic philosophy, as well as critical thinking. I try to propose a hypothesis which is a new three-stages-theory (the Trichotomy Theory) as the following: Firstly, mechanism analysis of medical behavior, (BMA). Secondly, factual cause analysis, cause in fact (FCA). Thirdly, legal evaluation and legal adjustment, legal causes, (LEA, legal evaluation adjustment). In chapter VI, I reviewed the concepts and the development of Evidence-base medicine（EBM）in medical profession field, then accordingly introduces the assessment of the application of the EBM in medical malpractice. I reviewed about the possibility and effect of using the EBM for surveying the medical expert opinions. Besides, I predict that evidenced-based medicine (EBM) and empirical legal study (ELS) will significantly impact on the causation and liability of medical malpractice in Taiwan. Chapter Chapter VII is a summary and conclusion presented according to the analysis results of above chapters. To find the truth and to perform the justice are essential not only in medical profession, but also in the application and enforcement of the law. The principle of cause and effect might be eternally the common truth of the justice performing, the medical practice, and the legal profession. How to enhance the objectivity of legal interpretation? Only if we enhanced the factual factors, we could enhance the objectivity of legal interpretation. The most important factor of causation is the behavioral analysis, in order to identify the following points of contention, such as breaching the duty of care, creating the unnecessary risk, and disobeying the experience rules, which were reliably based on the evidence-based medicine and empirical legal study.

碩士
國立陽明大學
公共衛生研究所
102
Purpose: By comparing the medical malpractice insurance in three states in the U.S. and the automobile insurance in Taiwan, I aim to discuss whether compulsive medical malpractice insurance is a way to solve problems of the under-compensated patient and over-burdened physicians. Method: Comparative Law Study, Literature Review Results: Compulsive medical insurance doesn’t necessarily means patients get fully compensated. Physicians in Florida would rather “go-bare” leaving some of the patients without any compensation. In New York’s case, the government had to establish an indemnity fund to cover part of the compensation so as to keep the premium from skyrocketing. California’s medical malpractice insurance seems to run pretty well with MICRA. The Californian government enforced caps on non-economic damages, cut back premiums and litigation fee. Taiwan’s automobile insurance also worked well with large numbers of cars insured each year. Conclusion: Compulsive medical malpractice insurance will not be the only solution to the problem in Taiwan. Rather than just forcing every physician into insurance coverage and letting the market take charge, our government should seriously consider other methods. Most importantly, physicians consciousness to the need of insurance would be preferable than forcing them to buy insurance by law.

碩士
國立臺北大學
法律學系一般生組
101
Medical lawsuits often file for criminal and civil prosecution, and the judgments often result in different consequence. There may be criminal proceedings announce the doctor is not guilty, but the civil proceedings announce the doctor have to compensate the patient for their damages. I’m curious about why the same incidents but in criminal conviction and civil verdict will result in different consequence, so I discussed for the text. For the differences from the criminal convictions and civil judgments, this text is focused on the "duty of care" and the "legal causation" because those two are the constituent elements of the liability for malpractice. The text is also involved in the normative functions and basic structure of the civil and criminal liability for malpractice, the connotation, foundation, standard of the duty of care, how to determine the legal causation, the loss of chance of survival, the duty of disclosure and notice, idiosyncratic cases, if the medical criminal liability for malpractice shall be limited to gross negligence, analysis of practice cases, and issues related to medical negligence. Although there are significant differences in the normative functions between the civil and criminal liability for malpractice, the basic structure of the civil and criminal liability for malpractice is common. The structure of the civil and criminal liability for malpractice is also classified as "the violation of the duty of care" and" legal causation ". The establishments of the civil liability for malpractice also have to consider whether the person who makes the juridical acts can have foreseeability and preventability about the results. On the "legal causation" part, criminal or civil proceedings are all taken the proximate cause theory in judicial practice, and its criteria are not different. Therefore, the establishments of civil and criminal liability for malpractice are so similar. But the normative functions of the civil and criminal liability for malpractice and others are different, and result in different consequence of civil and criminal judgments in medical negligence. For example, the loss of chance of survival theory, this text considers the theory was not applicable to criminal matters. And, this text also considers the medical criminal liability for malpractice should be limited to gross negligence, if the case is not about gross negligence, it seems more better to use civil and administrative liability to deal with. In this text, the similarities and differences of the medical negligence between the criminal and the civil liability for malpractice are the research direction, hoping to be able to raise some of the issues which can be explored and clarify the differences between the criminal and the civil liability for malpractice on the medical negligence.

The purpose of this thesis is to develop a comprehensive process for identifying and addressing primarily constitutional, medico-legal and liability issues, and in addition ethical, social and scientific issues related to the psychiatric and psychology professions in South Africa. In fulfilling this purpose, a comprehensive search is conducted of relevant historical, ethical, philosophical and clinical aspects pertaining to psychiatry and psychology, as well as an evaluation of the current juridical framework regarding the legal liability of the psychiatrist and psychologist balanced against the constitutional rights of the mentally disordered patient in South Africa. Recommendations are made for the establishment of any new controls needed to mitigate and prevent the exposure of mentally disordered patients, further attempting to provide specific remedies to adapt the current juridical framework in South Africa. The examination is conducted within the framework of the South African and United Kingdom's legal systems. Focus is placed on aspects of medical law, human rights law (as envisaged in the Bill of Rights in the Constitution of the Republic of South Africa, 1996), criminal law and the law of delict and, to a lesser extent, administrative law and the law of evidence.
Law
LL.D.

Obligation to compensate for personal injury in connection with provision of health care This dissertation is focused on the obligation to compensate for personal injury in connection with the provision of health care. The aim of the dissertation is to analyse relevant general elements of the obligation to compensate for personal injury as well as relevant special elements of such obligation. The dissertation surveys the interpretation of conceptual changes related to the recodification of Czech private law in the area of tort law in connection with the provision of health care. Legal basis of the doctor-patient relationship will also be analysed because such analysis is crucial for determination which elements of the obligation to compensate for personal injury will regularly be applied in this field. Therefore, the first chapter is devoted to the legal nature of the doctor-patient relationship. The second chapter deals with the obligation to compensate for personal injury caused by the provision of health care, i.e. with the definition and analysis of relevant elements of such obligation in this field. The third chapter is focused on the wrongfulness as one of the significant elements of the obligation to compensate for personal injury; substantial attention of this chapter is aimed at the...

Medical negligence is a growing concern within South Africa.1 The medical environment has great potential for conflict, because even the best trained physicians can commit errors that result in medical disabilities and sometimes in death.2 The conflicts that follow from these errors are mostly fuelled by emotions and they can become very expensive and time-consuming to settle using the litigation process.3 There is a growing recognition that alternative dispute resolution (ADR) systems in healthcare may alleviate some of the financial and psychological burdens on doctors and patients involved in medical negligence disputes. Mediation is a method of ADR that is flexible and it permits the parties to the dispute to have control over the resolution. A typical medical negligence dispute is driven by intensely emotional factors on the part of injured patients. Victims are not merely seeking financial compensation but they are also looking to understand the circumstances that brought on the event at hand. They want closure. A huge issue with regard to medical negligence litigation is the manner in which the claims are resolved. Litigation provides injured patients and caregivers with a traditional platform for addressing medical negligence claims. However, due to many reasons, this system seems not to be adequate for dealing with disputes arising from alleged medical negligence. Mediation offers a promising solution to the problems surrounding redress of medical negligence disputes.
Jurisprudence
LL. M.

O presente trabalho versa sobre a responsabilidade civil contratual médica no direito privado português. Encontra-se dividido em quatro partes. Na primeira, que corresponde à introdução, analisam-se as relações entre o direito e a medicina, dá-se uma breve nota do que é a medicina hoje, na sua diversidade e complexidade, fazendo-se referência à denominada medicina baseada na evidência (MBE), pelo seu significado para a temática da responsabilidade, define-se o atual paradigma da relação médico-doente, por contraposição com o modelo paternalista do passado, refere-se o papel da ética e da deontologia médicas, e delimita-se o objeto do estudo e traça-se o seu plano. A segunda parte referencia os muitos contributos que, entre nós, já foram dados para a matéria, destacando, de forma quase sempre individualizada, aquilo que foi sustentado por cada autor, quer no âmbito da doutrina jurídica, quer no da doutrina médica. De todos eles este trabalho é tributário. Seguidamente, dá-se conta, igualmente com o possível detalhe, da jurisprudência dos nossos tribunais superiores - Tribunais da Relação e Supremo Tribunal de Justiça - sobre casos de responsabilidade civil médica em direito privado, no período de 2000 a 2014, agrupando-a pelas diferentes especialidades médicas e pelos tipos de eventos mais comuns. Na terceira parte, faz-se um ponto de situação da matéria na atualidade, no direito português, analisam-se criticamente os contributos doutrinários e jurisprudenciais que foram antes referenciados e procura-se dar um contributo pessoal. A terminar, na quarta e última parte, elencam-se as principais conclusões do estudo realizado.
This work deals with medical contractual liability under Portuguese private law. It is divided into four parts. In the first, which corresponds to the introduction, the relationship between law and medicine is analysed, a brief note is provided with regard to what medicine is today, in all its diversity and complexity, with reference to so-called evidence-based medicine (EBM), due to its significance to the issue of liability, the current paradigm of the physician-patient relationship is defined, as opposed to the paternalistic model of the past, the role of ethics and medical ethics is examined, and the object of the study is indicated and its plan outlined. The second part references the many contributions regarding this matter, highlighting, almost always individually, what each author said, either within the scope of legal doctrine or within that of medical doctrine. This work is indebted to all of them. At this point, attention is given, as detailed as possible, to the case law of Portuguese higher courts - Courts of Appeal and Supreme Court - on cases of medical liability in private law, from 2000 to 2014, grouping them by different medical specialties and by the most common types of events. In the third part, the state of the matter as it currently stands under Portuguese law is analysed; doctrinal and jurisprudential contributions that were previously referenced are critically analysed; and an attempt is made to provide a personal contribution. Finally, in the fourth and final part, the main conclusions of the study are listed.