Academic journal article Washington International Law Journal

The Applicability of the Consumer Protection Law in Medical Malpractice Disputes in Taiwan

Academic journal article Washington International Law Journal

The Applicability of the Consumer Protection Law in Medical Malpractice Disputes in Taiwan

Article excerpt

I. INTRODUCTION

Medical malpractice law in Taiwan has a relatively short history compared to the U.S.1 It was developed in the early 1990s with the institutionalization of a centralized National Health Insurance Program ("NHIP").2 Under Taiwanese law, the legal basis for medical malpractice lawsuits derives from criminal liability,3 breach of contract, or tortious liability.4 The burden of proof for a tort-based claim is on a plaintiff to prove standard of care, breach of the standard (negligence), causation, and damages.5 However, the burden of proof in a medical negligence case presents several problems.6 A patient seldom has the information necessary to bring a claim. The need for expert testimony also poses an obstacle for patients.8 In Taiwan, plaintiffs do not have the discretion to introduce medical experts or evidence at trial. Instead, the judge has the sole authority to determine which experts will be called.9 A court typically employs the Medical Review Committee ("MRC") under Department of Health, the Executive Yuan,10 which reviews medical records and offers expert opinions on the medical standard of care.11

The MRC is an administrative agency operated by the Bureau of Medical Affairs ("BMA") under the Medical Care Act of 1986.12 Prior to 1987, courts and other judicial organizations routinely consulted with the Medical Dispute Reviewing Committee ("MDRC") formed by the Taiwan Physician's Association.13 Because the MDRC was composed entirely of physicians,14 the public questioned its neutrality, hi response to this concern, the Executive Yuan Department of Health founded the MRC in 1987 as the first official medical review board.15 The MRC consists of physicians, lawyers, scholars, and social personages.16 In addition to providing expert opinions for the judiciary, the MRC also handles various matters such as reviewing new medical technologies and discussing reform agendas.17 The MRC has been known to favor defendants, such as medical institutionsand physicians.18 In addition to this impediment, the complexity and cost of litigation deter and even prevent victims of medical malpractice from seeking legal remedies.

Because it is difficult to prove negligence under the conventional scheme, plaintiffs often seek other avenues to recover losses from medical injuries, such as the no-fault compensation scheme under the CPL.19 The CPL was enacted in 1994. The underlying legislative purpose was to protect consumers, traditionally the weaker parties, from the abuses of business operators.20 The CPL forces business operators to comply with the reasonably expected standard, which is detailed in the Enforcement Rules of the CPL. l Subsequent to the passage of the CPL, there was and is still much disagreement over the definitions of "service," "consumer," and "business operator" in its statutory language.22

For the first time in Taiwan, the Taipei District Court adopted a nofault medical liability rule under the CPL in Bo-Li Li v. Mackay Memorial Hospital.23 This case signaled a potential change in patients' right to seek remedies in medical malpractice disputes. However, this case also triggered debates over whether medical personnel should be subject to no-fault liability.

This Comment addresses several subjects arising out of this issue. Part II provides a summary of the Bo-Li case. Part III examines in depth the Bo-Li court's interpretation of the CPUs scope. Part IV discusses the issues related to the burden of proof in a medical malpractice case. Part V analyzes other judiciary holdings, including the recent Taiwan Supreme Court's opinion, as well as the Legislature's position. Finally, this Comment addresses the practicality of applying no-fault liability to medical injury lawsuits and suggests future directions in Part VI and VII. This Comment also translates the reasoning of the original court opinion and addresses the debate over whether medical care is under the scope of the CPL.

II. …

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