Sun, Jun 11, 2017 - Page 6 News List

Parsing medical malpractice ruling

By Hsieh Yen-yau 謝炎堯

On Monday, the Liberty Times (the Taipei Times’ sister paper) reported a development in an ongoing medical malpractice case brought by retired High Court justice Chen Yi-nan (陳貽男) against National Taiwan University Hospital (NTUH) doctors who treated his late wife for a brain injury a decade ago.

Supreme Court judges overturned a not-guilty verdict handed down by the High Court using the perverse logic of “guilty until proven innocent.”

At a time when the public is waiting for President Tsai Ing-wen’s (蔡英文) administration to enact judicial reforms, Supreme Court judges surprisingly ruled that the burden of proof in the case lies with the defendants, who must prove that malpractice did not occur.

All civilized nations employ the legal concept of “innocent until proven guilty” in criminal law cases. Only in Taiwan does information asymmetry between the plaintiff and the defendant in medical disputes mean that medical workers are legally required to prove their innocence because of a reverse onus clause, also known as inverse burden of proof, in criminal medical malpractice cases.

In Taiwan, information asymmetry between plaintiffs and defendants in criminal cases is standard practice and there are few exceptions. However, is it unconstitutional that the reverse onus clause only applies in cases of medical malpractice?

In the US, the plaintiff must engage a medical professional to provide evidence that a defendant made a mistake before a judge will agree to hear a medical malpractice case.

Chen’s wife, Wang Yuan-chiu (王苑楸), slipped and fell while exercising at a gym and was taken to the NTUH emergency room. Despite an operation, Wang later died. The analysis that follows is based upon reporting of the case by the Liberty Times.

First, it is important to establish if Wang simply fell while at the gym or if she fainted following a heart attack. If it was the former, then primary treatment would have been carried out by surgeons. However, if the latter was true, the case would have been handed over to physicians, with assistance from surgeons if required. How did the emergency room examining medical staff diagnose Wang on her arrival at the hospital?

If Wang’s brain stem was damaged when the head injury occurred, she would likely have died before reaching the hospital. However, if she sustained a brain hemorrhage, there would be three other possibilities.

First, in the case of an epidural hematoma — bleeding from arteries between the outer membrane of the central nervous system (dura mater) and the skull — Wang’s condition would have quickly become apparent to medical staff who would have taken immediate steps to treat it, although the mortality rate in such cases is high.

The second possibility is that the head injuries sustained by Wang caused a subdural hematoma — when bleeding occurs in veins beneath the dura mater.

The third possibility is that Wang sustained a cerebral arteriovenous malformation — when a small amount of bleeding occurs at a slow rate. It often takes up to six hours for symptoms to become apparent, and can even take several days. For this reason, when a patient with head injuries arrives at an emergency room, medical staff must examine a patient’s medical history and look for evidence of cranial nerve disease.

During the examination, medical staff must also assess the patient’s level of consciousness, test for pupillary light and nervous system response.

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