醫療糾紛法律爭議研究—以美容醫學為核心

Abstract

民國八十三年一月十三日開始實施之消費者保護法（以下簡稱消保法）其第7條規定：「從事設計、生產、製造商品或提供服務之企業經營者應確保其提供之商品或服務，無安全或衛生上之危險（第一項）。商品或服務具有危害消費者生命、身體、健康、財產之可能者，應於明顯處為警告標示及緊急處理危險之方法（第二項）。企業經營者違反前二項規定，致生損害於消費者或第三人時，應負連帶賠償責任。但企業經營者能證明其無過失者，法院得減輕其賠償責任（第三項）。」本條規定企業經營者所供之服務具有安全或衛生上之危險，致生損害於消費者或第三人時，不問其就損害之發生有無故意或過失，即應負賠償責任，本法立法本意即在經由無過失責任主之採取，以加強保護消費者之權益，蓋依第三項但書之規定，企業經濟者如能証明其就損害發生並無過失者，法院僅得減輕其賠償責任而已，並不妨礙其損害賠償責任之成立。消費者保護法就歸責原則方面，將服務責任與商品責任並列，採取無過失責任之立法。 論者有認為「消費者保護法」，對「服務」應課以「嚴格責任」他個人認為「無過失」一詞易使人誤解商品責任或服務責任之要件內涵，故建議採美國法所偏好之用語「嚴格責任」。然因該立法太過先進，尚無服務業發達之法治進步國家採用類似規定，對服務適用嚴格責任之立法例，似僅有巴西與中國大陸，惟前者明文排除自由業之適用，後者法治不彰參考價值不高，故學說與實務更應謹慎發展此一法律制度，以避凶趨吉，發揮「超前立法」及「先進立法例」引導社會與世界進步的功能。 本文自美容醫學之發展近況回顧，並說明美容醫學相較於傳統醫學，更為獨特之特徵及其認證方式，進而討論在主要以針對疾病支出為主的健保制度下，有著前揭特點（非疾病支出）之美容醫學，是否以及如何適用健保制度；並以此深入探討美容醫學之消費者保護，輔以消費者保護法的服務責任及醫療行為的無過失責任之研究，到醫療糾紛發生後之補償制度與醫師責任作結。試圖在美容醫學消費者與美容醫學服務提供者之間，尋找二者間之平衡點。

Regarding Consumer Protection Act (hereinafter shortened as the CPA) implemented on the 13th of January 1994, Article 7 stated: “(Paragraph 1) Traders engaging in designing, producing or manufacturing of goods or in the provisions of services, shall ensure that goods or services provided meet and comply with the contemporary technical and professional standards with reasonably expected safety requirements when placing the goods into the stream of commerce, or at the time rendering services.(Paragraph 2) All safety warnings and emergency response manuals shall be marked or labeled conspicuously on the goods or services provided which may cause harm to the lives, bodies, health or properties of consumers.(Paragraph 3) Traders shall be jointly and severally liable in violating the foregoing paragraphs and thereby causing injury or damage to consumers or third parties, provided that if traders can prove that they have not been negligent, the court may reduce damages.” This Article regulates that traders, whose service or products are involved with safety or sanitation risks and caused damages to consumers or a third party, shall be fully liable for the compensation regardless the damage was made with or without purpose or if it was made due to negligence. The purpose of this legislation is to enhance consumers’ rights and benefits by bounding traders’ liability with or without negligence. However, as regulated in Paragraph 3, traders who can prove that they have not been negligent to the cause of damage, the court may only reduce their liability for compensation instead of removing it. Adopted the legislation of strict liability, Consumer Protection Act has, in terms of the imputation principle, made service liability and product liability indifferent.

Some commentators believe that the Consumer Protection Act shall adopt “strict liability” for services. Due to his personal belief that the word “no-fault” may cause misunderstanding on the essential content of product or service liability, he therefore recommended to adopt “strict liability” as preferred in laws of the United States. Nevertheless, the said legislation is far well-developed that no countries with advanced laws and service industry have yet adopted similar legislation. The only exceptions are Brazil and the Mainland China. However, the former one has explicitly excluded its use in freelancer by a statute, whereas the latter one has little referential value due to unapparent development in law. Therefore, the theoretical and practical development of this legal system shall be more thoughtful not only to avoid possible risks and maximize benefits, but also to lead the community and world towards progress through “premature legislation” and “examples of advanced legislation”.

As a review of the recent development of aesthetic medicine, this article describes the certification methods and features of cosmetic medicine comparing with traditional medicine. It then carries out a discussion on aesthetic medicine that has aforementioned features (non-medical expenses) under the medical expense based national health insurance system, and the method of using this system appropriately. The discussion further deepens into the protection of aesthetic consumers together with researches on the service liability of consumer protection act and non-default liability for medical treatment. Finally, it ends up with the compensation system for medical dispute and doctors’ liabilities. This article attempts to find a balance between the consumers and service providers of aesthetic medicine.