Even if criminal liability for medical treatment that leads to death or injury is restricted to actions defined as “serious negligence,” hurdles remain. Prosecutors and judges are not medical experts and have to rely on external evaluations to inform their decisions. At present, the medical evaluation bodies available for this purpose are limited, and there is room for improving the system, so the outcome and objectivity of any evaluation is likely to be questioned. Thus the same problem of having the parties involved unconvinced by the judge’s verdict remains.
Even more worrying, since the interpretation of what constitutes serious negligence is still up to the prosecutors and judges, they can always relinquish responsibility for their decision to the legal clauses they are given to work with. In these cases, the patient or family members retain the right to seek compensation or the truth through civil lawsuits, locking the doctor and the patient into yet another drawn-out legal battle.
The conclusion that must be drawn, then, is that the optimal way to solve medical disputes lies not in the decriminalization of negligence, or in civil lawsuits. The way forward is in strengthening channels to settle disputes outside of the courtroom. For example, a medical compensation system could be established that would enable patients to receive compensation in the first instance.
Also, research on and legislation of the proposed amendment on dealing with medical disputes that the Department of Health has been proposing for years, which prioritizes mediation and arbitration, should be pushed forward. In particular, the setting up of an autonomous mechanism for dialogue between medical treatment providers and patients should be executed. If these things are not done, more doctors will be put off from practicing their profession.
Wu Ching-chin is an assistant professor at Aletheia University’s Department of Financial and Economic Law.
Translated by Paul Cooper