Abstract Legal issues caused by medical treatment involve administrative punishment, civil compensation and criminal liability. Among them, criminal liability is the most severe and most feared by the litigant, which can be known in the seminar on “Should Medical Malpractice Attract Criminal Liability?” held by Mackay Memorial Hospital on December, 2008. The premise of criminal liability here is that medical treatment may lead to social damage. According to criminal law, a doctor who commits malpractice will be found guilty of “occupational negligent bodily harm” or “occupational negligent killing.” The point of negligent crime is that the perpetrator breaches the duty of care. As for the doctor’s situation, the most common type of breach of duty of care is flawed medical treatment. In order to discuss the objective duty of care in medical practice, Supreme Court verdict no. 3428 on 2008 will be taken as an example in this paper. Firstly, criminal meaning of medical malpractice will be illustrated. Secondly, the differentiation between positive commission and negative forbearance of an act also will be analyzed. It is indicated that the focus of this case is forbearance, whose special meaning in medical treatment will be then interpreted. Moreover, it will be pointed out that breach of duty of care in medical practice should be based on an objective guideline andstandard operating procedures, which are beneficial for both the patient and the doctor, and are able to reduce cases of medical dispute. Finally, comment on this verdict will be made.