Reconstruction of Civil Liability System for Medical Malpractice-A Focus on Contract Liability-
Date Issued
2011
Date
2011
Author(s)
Chuang, Ching-Hsiu
Abstract
This study is based on medical contract liability that has long been ignored in an attempt to build a new civil liability system and correct civil litigation results in medical malpractice. In light of the fact that this study sets its tone to provide Taiwan with a solution to its local civil actions for medical malpractice, it begins with empirical analysis of civil liability in medical malpractice lawsuits and identifies problems with the present system in the handling of medical malpractice cases. Then, this study explores whether the contract liability or the tort liability can help better protect the rights of patients in civil cases of medical malpractice from the perspective of today’s civil liability. Meanwhile, English and German comparative law is quoted in this study, along with practical insights and observation of contemporary practices in Taiwan. The conclusion is that contract liability works better in the protection of patient rights.
Continuing the attempt to reconstruct the medical contract liability, this study focuses on three aspects. First, it adjusts the dualism of “intended acts or negligence are attributable” which has always been an important element in contract liability to the monism that “breach of contract obligations comprises contract liability” through interpretation of the contract, and this reduces the risk in burden of proof associated with a large number of elements required for contract liability to sustain. Another long-standing prerequisite for contract liability to sustain is the element of causation which this study has removed. Finally, it introduces Japan’s contract binding force and the theory differentiating obligation of means and obligation of result from France, producing the scope of application with the central train of thought being “self-government contract freedom in private law = the doctrine of party autonomy = contract binding force on the parties = imputation of causes = imputation of causes established = breach of contract obligations = contract liability sustained.” However, this study holds that such scope of application can only be applied in non-mandatory medical settings.
Last but not least, the contract liability for medical malpractice constructed in the present study differs from the conventional civil contract liability in that: 1. In Taiwan, the prerequisites for civil liability to sustain have always been based on dualism for both contract liability and tort liability; however, this study finds that there may be room for monism under the existing regulations. 2. In the handling of civil litigations in the case of medical malpractice, obligation of result-oriented medical contract obligations are in favor of plaintiffs for prerequisites of liability to sustain compared to the obligation of means-oriented ones. 3. It requires reviewing the self-government contract freedom principle of the private law and the scope of contract binding force on the parties before determining whether a medical contract falls in the category of obligation of means or obligation of result. If the parties has committed to fulfillment of the results, imputation of causes is strict and hence the interpretation favors obligation of result. Therefore, obligation of means and obligation of result are relative concepts. 4. Contract binding force on the parties expands contract interests (payable ones) and the scope of compensation. Nevertheless, obligation of result seems more feasible in actual practice.
Subjects
medical civil liability
contract binding force
contract liability
obligation of means
obligation of result
causation
burden of proof
Type
thesis
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