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篇名 論醫療契約不完全給付可歸責性要件之舉證責任-兼評最高法97年度台上字第1000號民事判決
卷期 44
並列篇名 The Burden of Proof in the Incomplete Performance of Medical Contracts - Comment on a Judgment of the Supreme Court
作者 吳振吉姜世明
頁次 091-158
關鍵字 醫療契約不完全給付舉證責任武器平等原則防禦性醫療行為Medical ContractIncomplete PerformanceBurden of ProofEquality of ArmsDefensive Medicine
出刊日期 201212

中文摘要

關於醫療契約不完全給付可歸責性要件之舉證責任,本件判決以為,若債權人已證明有債之關係存在,並因債務人不履行債務而受有損害,即得請求債務人負債務不履行責任,倘債務人抗辯損害之發生為不可歸責於債務人之事由所致,自應由其負舉證責任,如未能舉證證明,即不能免責。法邏輯上,由病方(債權人)及醫方(債務人)分別就醫療契約不完全給付之「客觀義務違反」及「主觀可歸責性要件」負舉證責任,應為可採。惟若認為凡病方因醫療契約履行相關之事由受有損害,即得請求醫方負債務不履行責任,醫方須舉證證明其不可歸責,方能免責,則論理上恐有跳躍,而有混淆「醫療損害」與「醫療契約義務違反」之虞。醫療給付係方法債務,契約義務違反與否之判斷須視醫療給付是否違反通認之醫療準則,而在晚近侵權行為過失之判斷採客觀標準之趨勢下,要求病方就醫方違反醫療契約義務舉證,與要求病方就醫療侵權行為之過失舉證,實質上並無差異。準此,無論病方主張侵權責任或契約責任,法院於操作舉證責任分配時,宜先令病方就「整個醫療行為事實是否違反客觀醫療準則」負舉證之責,而基於醫療訴訟中醫病雙方武器不平等之本質,再依各種舉證責任減輕之具體規則,調整雙方間舉證責任分配。

英文摘要

The number of malpractice claims filed in Taiwan against physicians has increased significantly in the recent decades. Medical malpractice litigations are characterized by a huge gap in medical knowledge between physicians and patients, leading to an unequal status between both parties in the trials. Since the amendment and promulgation of Article 82 of the Medical Care Act, there has been a consensus that strict liability is no longer applicable in medical litigations, and negligence becomes an essential element for establishing the liability of medical practitioners. In addition to modifying liability rules, an alternative for achieving equality of arms is to relieve the plaintiffs from the burden of proof. However, the burden of proof should be adjusted with precaution, because an excessive shift might contribute to defensive medicine. For medical civil litigations in Taiwan, the plaintiff (i.e. the patient) can start an action based on contractual liabilities, tort liabilities, or both. If the plaintiff claims based on contractual liabilities, it is commonly held by the courts that the presence of medical injuries stands for the physician’s failure to undertake contractual duties, so that the physician has to prove he is not negligent with regards to the medical service. We consider these holdings as inappropriate, as the judgment of the performance in medical contracts should rely on the medical service per se instead of the treatment results. Over-charging the physician with the burden of proof will inevitably lead to defensive medicine. In our opinions, the presence of medical negligence should be assessed according to objective standards or guidelines which a reasonable physician should follow in the medical practice. Consequently, the court decisions made on contractual liabilities shall not deviate significantly from those made on tort liabilities. In principle, the burden of proof should be allocated to the plaintiff first, with specific rules applied to ease the plaintiff’s burden of proof to achieve the equality of arms in medical civil litigations.

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