論急診醫師之刑事責任-從審判實務看急診醫療案件所應考量之因子

Abstract

隨著醫療日益發達，人們可享受高醫療品質，然就醫方便卻也成為臺灣醫療糾紛劇增原因之一。醫療中最常出現在新聞媒體莫過於急診室，除了急診暴力外，還有急診壅塞、急診健保制度及急診醫療糾紛之問題，而急診室醫師因急救病人卻被判刑之問題亦受人矚目，惟實務上真的有那麼多急診室醫師被判刑定讞？對於急診醫師之行為造成了「失敗」 的結果，檢察官是否據此結果即予以起訴，而起訴後法官究竟要考量之因子有哪些？ 醫學在本質上即有相當之不確定性，醫療行為本身有其風險存在，站在最前線之急診室遇到之病患又是最具急迫性，急診時病患之狀況瞬息萬變，復需在短時間內從許多選擇中做出正確判斷，實屬高度困難之事，既為危急之病情，病人之醫療照護執行與評估則應有特殊之要求。然而，急診醫師在資訊有限不足、設備更為侷促之情況下，一旦發生醫療疏失，是否在法律的評價上均認定為有過失而有刑事責任？目前之學說或論文多係對一般醫療糾紛，或就個案各別討論，並未分科別加以整理評析，亦無針對急診醫療之性質而作特別探討。本文期以從實務工作者之觀點切入，搜集民國86年至101年間，10件有罪、15件無罪定讞之醫療事故，其中10件有罪判決計12名急診醫師，被判處最高刑期為有期徒刑10月、最低刑期為有期徒刑2月，分別為諭知易科罰金或為緩刑之宣告，加以分析，進而了解法官審理時所應考量之因子，分別從病人本身方面：急診檢傷分類之等級、病患就診原因及其主訴、昏迷指數；醫院及醫師方面：就診醫院之層級、就診期間診間人數之多寡、被告擔任醫師之期間以及量刑方面：被告犯罪後之態度等因子逐一檢視，明瞭現行實務上關於急診醫療糾紛之真實狀況。 本文再藉由搜集美國相關醫療糾紛案例及簡介病人在美國急診就醫時之相關規定，進而了解美國並非不可能將醫療糾紛事件科以刑事責任，並整理值得借鏡之處。復建議且期待審理醫療糾紛案件之法官充實醫療專業知識，積極參與研習課程、研討會，鼓勵取得刑事醫療專業證照，及透過專業法庭之運作，跨越專業知識之鴻溝，亦可參酌現行試辦之雙調委制，讓法律專業及醫療專業早日介入糾紛。以此成果為基礎，重新省思，以供醫界及法界作為參考。

With the advancement of medical technologies, people can enjoy high quality medical care services. However, the convenience of medical treatment in Taiwan has also become one of the causes for the dramatic increase in medical malpractice disputes. Medical cases most often reported by the media are the ones related to emergency rooms. In addition to emergency room violence and congested conditions, these cases also comprise the emergency care system and medical disputes. The issue of emergency room physicians receiving criminal sentences due to the emergency care they provided to patients has also received great attention. However, in practice, have there really been that many emergency room physicians who have received criminal sentences? Do prosecutors file complaints against emergency room physicians based on their "failed" medical practice？What are the factors judges have to consider after prosecution？ Medical science, by its nature, involves a great deal of uncertainty. Medical practice itself has its risks. Frontline emergency room physicians must treat patients in the most urgent conditions, and these patients' conditions are constantly changing. The physicians must make the right judgments from numerous options on very short notice, which is extremely difficult. The implementation of medical care and evaluation for patients in critical condition should involve special requirements. However, with only limited information and equipment in emergency rooms, should emergency room physicians be evaluated as negligence under law in the event of medical errors? The current academic theories and papers mostly focus on general medical malpractice cases, or discuss individual cases. They do not distinguish between different medical fields for further analysis, nor do they provide special discussions for cases involving emergency medical care conditions. In this study, 25 cases are collected from 1997 to 2012, 10 of which are guilty and the rest 15 cases are innocent. 12 ER physicians sentenced to 2~10 months. Many of them could convert imprisonment into fine or suspension of punishment. When it comes to ER criminal trial, Judges should consider the following factors : triage, causes of going to hospitals, medical level of hospitals, how many patients in the emergency room, period of practicing physicians, the after offenders' attitude committing the offense and so on. This study aims to clarify some misconceptions from the perspective of practical applications, to understand the true state of emergency medical disputes under current practices. This study also discussed medical malpractice-related cases in the United States and the rights that patients enjoy when receiving emergency medical treatment in the US. This study found that medical disputes in the US may be classified as criminal liability cases. We can learn from these cases. We suggest that judges who hear medical malpractice cases should enrich their professional medical knowledge, actively participate in learning programs and seminars, and be encouraged to obtain certification in criminal medicine, in order to bridge the knowledge gap between professions through specialized court operations. Additionally, we suggest that deliberation could proceed in a dual conciliation committee system, and allow legal and medical professionals to participate in such disputes at the earliest possible point. The results should serve as a basis for reforms, and provide reference for the medical and legal fields.