Last week, the Ministry of Justice organized its first public hearing to discuss criminal liability for medical malpractice. Currently, such cases are prosecuted under the Criminal Code: No attention is paid to the seriousness of an offense and everyone is treated as a criminal, which is unreasonable. Records show that one-quarter of doctors are convicted in the court of first instance, the local district court, and that the most severe sentence handed down is three years in prison, with the average being about seven months. Although 80 percent are given a deferred sentence or see it converted into a fine, there is a 20 percent risk that they will have to do time in prison. The doctors most frequently charged are those who work in surgery departments, followed by doctors in the internal medicine, obstetrics, gynecology and emergency medicine departments, in that order.
As a result, Taiwan has the highest crime rate among doctors in the world and this has led to a preference for practicing preventative medicine, increasing medical costs, tense doctor-patient relationships and a lack of new blood in the higher-risk departments.
In Taiwan, medical lawsuits are normally tried under the Criminal Code rather than the Civil Code, which is used as a tool to extract settlements and compensation. The intent of criminal law is to punish criminals, while the remedies provided by civil law are fundamentally different. The responsibility of doctors is to treat people and to save lives — they are not driven by a motivation to hurt people, but once a mistake occurs, they are prosecuted under criminal law and tried as criminals.
From the patient’s perspective, the main purpose for initiating a medical lawsuit is to lay bare the truth and to obtain compensation, but these goals are difficult to achieve based on current litigation practices. An average of 1.5 medical lawsuits are filed every day. The explosive relationship that exists between doctors and patients is highlighted by the fact that some of the ways in which medical disputes are dealt with include involving legislators, demonstrating with protest banners or carrying “coffins,” throwing eggs and burning ghost money.
In these situations, most people who file a lawsuit will file a criminal lawsuit with the intent to use the technicalities of criminal law to force a civil law settlement and damages. However, the success rate of this approach is low and seven years of prosecutorial data show that from an average of approximately 100 cases of medical malpractice in which the patient died, only about 10 percent went to court in the past three years. As for cases of malpractice resulting in patient injury, less than 6 percent were brought to court.
The problem with pursuing a medical case under criminal law to force a civil settlement is that the judge must be convinced beyond doubt before issuing a verdict. This means that the patient does not succeed in their goal of obtaining compensation by filing a criminal lawsuit to force a civil law settlement. If not convicted, the defendant will be less willing to reach an out-of-court settlement and it will also affect the amount they might be willing to settle for.
Furthermore, a criminal lawsuit places the litigation costs on the prosecutorial authorities and the government. It is also not very effective, because medical malpractice often requires several medical reviews and it often takes eight years or more to hand down a verdict. This is tough on both the patient and the doctor and it also increases the load on the court system. In addition, since doctor and patient frequently take diametrically opposed positions, it is difficult to get to the truth and damages will not be very high.
At the public hearing, the Department of Health proposed that Article 82 of the Medical Care Act (醫療法) be amended so that criminal liability will be required only for medical personnel found guilty of deliberate or clear violations of normal medical practice, and this must be deemed to be a significant violation. However, the legal framework, wording and intent remain unfamiliar to the public and medical reform groups often believe that attempts to discuss decriminalization and to amend the law are driven by doctors seeking to rid themselves of criminal responsibility. This is in fact not correct.
At the public hearing, a statement by doctors’ organizations made it clear that while they do not want to be stigmatized, they do not seek decriminalization or freedom from punishment. They want medical legal liability to be made clear and reasonable and this is based on a well-thought-out long-term vision, not self-interest.
However, amending the Medical Care Act is only a matter of correcting the current unreasonable conflict-bound relationship that exists between doctor, patient and the prosecutorial system. To improve Taiwan’s medical lawsuit system as well, as its compensation process, it is necessary to plan and establish a compensation mechanism similar to the mechanism in northern European countries. Medical mistakes are extremely common and to get to the bottom of such issues, it is very helpful to learn from those mistakes and improve the quality of medical care. Costs derived from medical disputes account for 2.4 percent of US medical expenditure. As Taiwan’s medical care is gradually socialized, the government, the National Health Insurance system, medical institutions and the public at large must share responsibility for building a new medical culture and a new compensation system.
Chiang Sheng is an attending physician in the Department of Obstetrics and Gynecology at Mackay Memorial Hospital.
Translated by Perry Svensson
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