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醫療過失注意義務標準

醫療過失注意義務標準. 楊智傑. 未替病患做青光眼檢查 ( 原文書 p94) ( 翻譯本 p104).

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醫療過失注意義務標準

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  1. 醫療過失注意義務標準 楊智傑

  2. 未替病患做青光眼檢查(原文書p94) (翻譯本p104) • Another famous example of judicial definition of reasonable conduct（合理行為） is Helling v. Carey, 519 P. 2d 981(Wash.1974) (SATL4th ed., p.294). In Helling, the defendant ophthalmologist（眼科醫師）, in treating the plaintiff, had followed the customary practice of not testing persons under the age 40 for glaucoma（青光眼）.

  3. 做青光眼檢查很簡單、便宜、可靠 • The test, if properly administered, would have been relatively simple, inexpensive, and dependable（可靠的）, and without it detection（偵查、察覺） of the disease was virtually impossible. Mindful of the “grave and devastating” （重大及毀滅性的）nature of the potential harm and of the slight burden that administering the test would impose, the court held that it was negligent as a matter of law not to give the test.

  4. 該注意標準也適用於該案 • The ruling set the standard of care not only for the case pending（懸） before the court, but for future cases as well. The court decided not to make its holding prospective（展望未來） only, but to apply it to the defendants in Helling (who obviously did not have prior notice（事前通知） of the new rule).

  5. 病患一直是醫生的病人 • That choice may have been influenced by the fact that the plaintiff was not a first-time patient, but had been under the defendant’s care for several years. During that time there had been many opportunities to administer the glaucoma test to her.

  6. 違反法定注意標準之後果 • 法定過失說（negligence per se） • 推定過失說（prima facie negligence） • 過失證據說（evidence of negligence）

  7. 違反法定義務(原文書p100) (翻譯本p110) • Ordinarily, proving an unexcused（沒有藉口的） violation of a standard-setting statute （設定標準之法律）greatly simplifies the plaintiff’s case: the jury inquiry focuses on a specific rule and related facts rather than on a global assessment（評估） of the totality of the circumstances relevant to the issue of reasonableness (i.e., the gravity of the threatened loss, the probability of foreseeable harm, the utility of the defendant’s conduct, and the availability and burden of alternative courses of action).

  8. 沒有脊柱按摩治療師執照 • In some instances, however, proof that the defendant’s conduct was in violation of a statute will add little to the plaintiff’s case for negligence. In Brown v. Shyne, 151 N.E. 197 (N.Y. 1926) (SATL4th ed., p. 304 n.5), the plaintiff became paralyzed（癱瘓） after receiving chiropractic （脊椎按摩法）treatments from the defendant. In her negligence action, the plaintiff sought to rely on the fact that the chiropractor（脊椎按摩師） had never been licensed（得到許可證照）, as required by statute.

  9. 沒有執照不代表該醫生欠缺技術或注意 • The court held that the licensing law was intended to protect the public only against unskilled（欠缺技巧） and unlearned（未受教育） practitioners, not to impose strict liability upon those who exercise skill and care merely by reason of the fact that they lack a license（許可證照）.

  10. 證明欠缺技術或注意才是關鍵 • Thus, since the plaintiff would have had to show lack of skill and care in order to bring the injury within the category of harm the legislation had sought to prevent, negligence would already be established without regard to the violation of the statute.

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