關於醫療契約責任之歸屬主體，本案臺灣高等法院 99 年度醫上更（一）字第 3 號民事判決及其他多數實務見解以為，僅醫院為醫療契約之當事人，醫師除可能之侵權責任外，對於病人毋庸負契約責任。因我國多數醫院屬於「閉鎖性」醫療組織，而由醫院所聘用之專任醫師從事醫療工作，以醫師為醫療契約之履行輔助人，而以醫院為醫療契約之當事人，原則上應值贊同。惟本文以為，於特定之例外情形，醫師亦須負契約責任。其一，於「開放性醫院」及「半開放性醫院」由院外醫師提供醫療給付之部分，應以院外醫師爲契約之當事人，醫院僅就病人住宿、膳食與其他護理照護等事項負契約責任；惟若病人之損害係同時起因於院外醫師及醫院之給付領域，則宜參考德國實務操作，由院外醫師及醫院負連帶賠償責任。其二，於「指定醫師費制度」就病人支付「指定醫師費」選擇特定之醫療給付部分，醫院及被指定醫師均為契約之當事人，應由醫院及被指定醫師負連帶賠償責任，至於住宿、膳食及其他非特定醫療處置，則由醫院單獨負責。

In the Taiwanese courts, a consensus has almost been reached that in thecontext of medical contracts, the hospital is the obligor, whereas the physicianis a third party of the contract whom the hospital uses to perform the obligations.In other words, the physician is exculpated from contractual liability, althoughhe or she may still be liable for torts. This consensus is essentially valid, as thegreat majority of hospitals in Taiwan are “closed” hospitals, in which onlyphysicians employed by the institution may admit and treat patients. In thepresent article, we propose that the physician is liable on medical contractstogether with the hospital under two circumstances. First, in “open” or“semi-open” hospitals, to which physicians who are not staff members maysend their own patients and supervise their treatment, the medical contract isdivided into two parts: the physician is obliged to provide medical care,whereas the hospital is obliged to provide accommodation, catering service, aswell as other non-medical care. Second, if the patient selects a specificphysician for special medical service by paying an additional fee, both theselected physician and the hospital are the obligors, constituting ajoint-obligation with regards to the selected special medical service. Otherwise,obligations for the accommodation, catering service and non-selected medicalcare are confined to the hospital.