作為義務與醫療不作為

1. 作為義務與醫療不作為 楊智傑

2. 不作為 • 行為人對處於危險之中的他人沒有提供幫助的義務，不論給他人提供幫助有多麼容易，也不論不提供幫助是基於故意還是粗心。

3. 免除自願幫助者之過失責任 • Duty-creating statutes sometimes also contain provisions which confer immunities（豁免） on persons who render aid at the scene of an accident（事故、意外）. The statute may, for example, relieve（解除） the actor from liability for conduct undertaken in good faith（善意）, or may limit liability to cases of aggravated misconduct (i.e., something more than mere negligence).

4. 善人法規 • Laws conferring that kind of immunity are often referred to as “Good Samaritan” laws（善人法規（好撒瑪利亞人法） ）. They have been enacted in most states, many of which have not criminalized failure to act.

5. 終止救助行為 • If remedial efforts are terminated, the actor must take whatever steps are necessary to ensure that the victim is not subject to an unreasonable risk of harm. • For example, in Brownsille Medical Center v. Gracia, 704 S.W.2d 68 (Tex. App. 1985) (SATL 4th ed., p.504), the defendant hospital had admitted an ill child and began to prepare him for surgery.

6. 付不出醫療費而停止手術 • There was evidence that upon learning that the child’s parents lacked financial resources, services were terminated and the child was transferred to a different hospital, where, without surgery, the child later died. • The court held that the jury could find that, by terminating service, the hospital subjected the child to greater, unreasonable risk of harm, and could therefore be found responsible for the death.

7. 自願承擔義務 • In some instances, the critical question in determining whether there has been a voluntary assumption of duty（自願承擔義務） is whether there has in fact been an “undertaking”（承諾） by the defendant. In the usual case, this is not difficult to establish, for the defendant’s affirmative conduct is clear.

8. 急診室自願承認行為 • Thus, in the absence of contrary legislation, a public emergency ward（急診室）, by its very nature, may be held to have voluntarily assumed a duty of care and may be liable for the aggravation of injuries caused by turning away a person seeking medical treatment.

9. 聯邦急診醫療與主動勞動法 • (Today, the federal Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals receiving Medicare funds to provide appropriate medical screening to all persons who come to an emergency room seeking medical assistance and to render the services that are necessary to stabilize（穩定） the patient’s condition.)

10. 未告知血液檢測結果 • In some cases, the question is whether the defendant’s undertaking to do something creates a duty to the plaintiff. • In Coffee v. McDonnell-Douglas Corp., 503 P.2 1366 (Cal. 1972) (SATL 4th ed., p. 492), a company had administered a blood test to a prospective test pilot（飛機試飛員）, but had negligently failed to read the test results and hence did not inform the candidate of the serious condition the test revealed.

11. 有些法院認為驗血不是為了病人 • On these types of fact, some courts would have held that the defendant was administering the test for its own purposes, not for the benefit of the test subject, and therefore no duty of reasonable care was owed to the job applicant（工作申請者）. • However, this court reached a contrary result. The court held that regardless of whether the case was read as involving a failure to discover rather than a failure to disclose, the company owed a duty of reasonable care to the test subject.

12. 驗血時就承擔了注意義務 • The duty to administer and evaluate the blood examination properly was undertaken when the company elected to give the plaintiff the test. Thus, the company could be held responsible for the extent to which the plaintiff’s condition was aggravated by nondisclosure.

13. 承擔注意義務對第三人責任 • In some instance, a person’s assumption of a duty to one person will carry with it other duties to third parties. For example, if a doctor gives erroneous advice about a communicable disease（傳染性疾病） to a patient, and as a result a third person, whose health was likely to be threatened by the patient, contracts（感染） the disease, the third person may sue the doctor. Some courts have held that an architect or engineer, who owes a client a duty to detect and stop inadequate construction, may be liable to a passerby（路人） who is injured when the unsafe building collapses.

14. 導致第三人對行為人產生有害信賴 • Other courts have reached a contrary result on similar facts. • According to the Restatement, Second, of Tort（侵權法重述） (§324A), an obligation to a third party will arise if the actor’s performance of services for another: increases the risk of harm to the third party; induces（引誘） detrimental reliance by the third party; or if the actor has undertaken to perform a duty owed by the other person to the third party.