Tue, Jul 03, 2012 page8

• Effects of decriminalizing medicine

  • By Wu Ching-chin 吳景欽
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  Medical professionals are constantly vulnerable to litigation, making medicine the profession with one of the highest criminal conviction rates. The fact that many medical disputes arise from treatment given in emergency rooms creates a vicious circle, as any grievance is often the result of severe staff shortages, making young doctors reluctant to work there.

  From 2000 to 2008, criminal litigation was brought against 312 hospital doctors for medical malpractice. Although many of the doctors were found innocent or given suspended sentences, the process can drag on for years and the cases cannot be appealed. This not only takes up judicial resources, it is also very frustrating for the accused, the patient and their family. On the face of it, the best solution would be to decriminalize medical negligence.

  The Ministry of Justice has organized a public hearing on Friday to discuss whether medical malpractice should be decriminalized or tightened up. However, is this the only option?

  Only legislators can make laws governing common or general matters. Making medical malpractice a non-criminal liability would essentially be placing a specific group or profession beyond the Criminal Code, which would violate the prohibition on legislating on behalf of individual cases and the principle of fairness. Even if there were a case for decriminalization, as the Department of Health has proposed in its amendment to Article 82, clause 3 of the Medical Care Act (醫療法), criminal liability for medical negligence would still be reserved for conduct that can be shown to have been intentional or of a serious nature. This would effectively be only a partial decriminalization and would be very difficult to apply in practice.

  Article 14 of the Criminal Code says that negligence can be differentiated according to whether the actor was aware of the consequences of their conduct. The severity of the punishment for negligence that leads to death or serious harm is addressed in clause 2 of Article 276 and clause 2 of Article 284. Apart from this, the code does not specify different punishments depending on the severity of the negligence, but leaves it up to the discretion of the judges in individual cases.

  If criminal liability were restricted for medical practice in serious cases only, there could be problems: This concept is not covered in the Criminal Code, and criminal law judges have never defined such a concept. It would therefore be necessary to resort to how it is defined in the Civil Code. Given that the two codes have different purposes — the Criminal Code deals with punishment, the Civil Code with resolving private disputes — it is doubtful that the two could be mutually applied in a complementary way.

  To avoid different interpretations of serious negligence, it could be possible to define it as “serious violations of duty of care and divergence from medical treatment norms.” However, how does one define a “serious violation?” In a profession as highly specialized and complex as medicine, what are these so-called “norms?”

  It makes little difference, then, whether one chooses to use “serious negligence” or the paraphrased definition; both will lead to problems of interpretation potentially resulting in differing outcomes to seemingly similar cases. Although this would be unfair, one could not question the integrity of judges or their rulings.

  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
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