In Taiwan, there has been much debate in recent years over the issue of criminal liability for medical malpractice. The purpose of this study is to define a reasonable criminal liability in medical cases. In addition, it discusses the issue of causation between medical treatments and harmful results based on medical duty as a requirement stipulated under medical law. Medical personnel bear no criminal liability for cases, either subjective or objective, with harmful results that are unforeseeable or unavoidable. Moreover, there is no single standard for medical personnel’s performance of duty; only appropriate treatment standards exist.
In terms of the issue of causation, this thesis analyzes the similarities and differences between continental and Anglo-American legal systems. This study found that although these two systems are not exactly the same, they still have many aspects in common; specifically, in medical cases, wherein medical treatment is usually considered as an intervening cause. However, if there is no first defendant, i.e., a patient or natural disaster, which establishes a causal connection between an act and harmful result, it is doubtful to apply these two theories in determining a medical doctor’s criminal liability. Furthermore, most criminal acts committed in medical practice are commonly associated with criminal negligence and in these cases, there are usually harmful results with multiple cause-in-fact. For example, death may have two actual causes; one from patient’s sickness and the other from medical harm. Medical personnel should bear criminal liability only if they are guilty of medical harm. This thesis develops an intervening cause theory to deal with criminal liability for medical malpractice.
This thesis is divided as follows: Chapter Ⅰ is the introduction; Chapter Ⅱ briefly explains the difference between medical treatments and non-medical treatments in criminal law; Chapter Ⅲ discusses the concept of medical duty in detail. The author also attempts to clarify the relationship between medical duty and other related concepts, such as duty of care, duty to act, and informed consent; Chapter Ⅳ describes the issue of causation in criminal law; Chapter Ⅴ introduces an intervening cause theory in medical cases; Chapter Ⅵ concludes the study with pieces of legal advice in dealing with medical cases in criminal law.
Keywords: medical duty, duty of care, duty to act, cause in fact, cause in law, intervening causation