The Status of Medical Ethics in the Process of Legal Application

近年來，醫病訴訟案件常引起醫界與社會大眾的廣泛討論。然而通常在引起社會大眾注目的案件中，判決呈現的不僅為病人安全提升的議題，更存在社會資源如何合理分配、各種利害如何折衝選擇之問題。目前關於醫療糾紛之討論，多僅注重單一面向，而產生見解衝突。此種衝突若不尋求解決，將導致行為規範之混亂。 為提出醫學倫理與法律體系衝突之初步想法，本論文首先嘗試釐清醫學倫理的規範體系如何影響醫師的醫療行為決定，以求出醫學倫理之特徵；其次觀察隱含法律與倫理衝突之態樣，並指出衝突產生之負面影響。準此，本論文欲建立「倫理與法律規範互動」之架構，以證立醫學倫理與法律規範之價值融貫性，並主張融貫之醫學倫理與法律見解可建立更完整之醫療行為規範。 此外，本論文認為法院於法律適用上，對醫療本質認識的應回歸醫療法之醫療注意義務，以判斷醫師行為是否已達醫學倫理與法律規範之要求；故於各法域之各法律解釋與補充之層面，皆應與醫學倫理之判斷加以整合。惟於少數極端情形，仍需由立法者行制度改良或資源分配。若法院之判斷中隱含醫學倫理判斷，則法院對於個案中之行為決策者具有說理義務，並應盡量減輕行為正當之當事人於個案中所應負之責任；其次對於重大悖離社群價值之行為，則應適時藉由法律體系與判決給予醫學倫理體系一定之回饋，以達到社群價值整全之目標。 本論文之提出，目的在於賦予醫學倫理於法律適用上一定地位。微觀而言，期使秉持醫學倫理與專業之醫師於行醫時更加安心，而緩解醫界當前所畏懼之法律危險可減少防禦性醫療，以緩和當前緊繃之醫病關係；巨觀而言，其藉由社群價值的整全性追求，使醫療行為決策更符合社群之期待，也更能因應醫療科技與時代變遷之挑戰。Medical litigations have aroused pervasive public concerns recently. In well-known cases, judgments of courts reflect not only patient safety issues, but most of all, how to distribute resources fairly, and how to value liabilities. So far discussions about medical dispute often concentrate on single-dimensional approach, and lead to different conclusions. These conflicts between viewpoints from different academies lead to chaos in norm of behavior in medical practices. In order to find a resolution to the conflicts of medical ethics and legal system, the author tries to build a model for how medical ethics and law interacts. Firstly by illustrating the characteristics of medical ethics, it shows how medical ethics guide doctors when they make decisions and the importance of medical ethics in daily practices. Consequently, the conflicts of legal norms and medical ethics bring about negative effects on doctors'' decision-making, such as defensive medicine. Therefore, a more coherent structure for medical ethics on legal application should be established to reach the integrity of value in a mutual community, and it can help doctors act more confidently. Furthermore, the understanding to medicine on legal application should be based on the nature of how medical law define medical practices, so that when determining whether a doctor has accomplished his duty of care, one may be more certain that he hasn''t violate the regulations of law and requirements of medical ethics. Hence when applying the tools of legal application, medical ethics should always be put into consideration, and when occasionally judges have reach their limit, then legislators need to exert their power over confining legal system and distributing resources. Since the judgments of court can actually be integrate with the sanction of medical ethics, judges has obligation to reason giving, and a judge ought to alleviate the liability of one who acts according to medical ethics. Besides, in cases which perpetrator significantly fail to respect the value of the community, judges should timely offer a feedback to the ethical system to pursue the integrity of community values. The objective of this thesis is to establish a standing for medical ethics in legal application. If doctors who stick to their professionalism and ethics can have confidence in their decision making, the tension between doctors and patients would relieve because of less defensive medicine. And if the community has consensus in pursuing a mutual value, then medical decision making would be refined, and we will be more capable of dealing with the challenge to come