Medical Malpractice and Dispute Resolutions in Taiwan
A Cultural Background
Medical malpractice in Taiwan is a complicate problem of multiple dimensions ranging from flawed court system to mutual distrust between health providers and patients. One of the most serious problems lies in the lack of sense of justice and understandings felt by both public and medical personnel toward medical accidents. Risks exist in nearly all medical treatments, and often it is difficult to distinguish medical accident from malpractice. However, in Taiwan’s situation, the government and healthcare institutions fail to provide credible dispute resolution mechanisms when medical misadventures occur. The lack of information transparency and reliable mediation agencies has made the medical dispute in Taiwan a competition of wealth and political tie. The following are few unique features of medical malpractice resolution in Taiwan:
1. Legal Procedures
Patients claiming medical malpractice can resort to either or both civil and criminal procedures. In a civil lawsuit for tortious compensation, patients/plaintiffs need to demonstrate injury, fault, and causation by presenting convincing evidences by themselves, and the chance of winning is very low. Naturally, most patients turn their cases to the criminal procedures by filing the case to the prosecutors complaining a criminal-code-276 violation which criminalizes the act of professional negligence causing serious injury and death. In the criminal procedures, the court is required to investigate, and the sentence would include possible imprisonment. However, the chance of winning criminal cases is much slimmer than civil lawsuits. The following are several flaws that exist within such court system:
a. Expert Witness: In both civil and criminal litigations, the opinions of expert witness are crucial to the case result. In civil cases, the burden of finding expert testimony is on the plaintiff side (aka. the patients and their families). The problem arises when the Taiwanese court only accepts expert testimony from designated medical centers or the official "Medical Review Board (醫審會)". While medical centers often are reluctant to testify against their fellow medical professionals, the Medical Review Board is severely short-handed, and does not open their service to private patients. Thus, patients in Taiwan face great difficulties in finding expert witness that is willing to stand by their side.
b. The legal regulation on medical record provision is weak. Patients often need to bypass several obstacles before they could access their own medical records. The difficulty of acquiring medical record increases sharply during the medical dispute. The credibility of the record also often becomes question because of the weak supervision mechanism.
c. Since it is very difficult to find expert witness in civil cases, most of patients would prefer to file criminal charges instead. However, the criminal litigation not only takes longer time to process, has far less chance of succeeding, but also put medical practitioner accused into highly defensive attitudes, which often reduces opportunity for reconciliation or negotiation.
d. There is no internal mechanism within hospitals to report medical incidents. There is also a lack of neutral accreditation agency responsible for monitoring the occurrence of malpractices or negligence. The shortage of supervision and recording put both patient and medical practitioners in difficult positions and mutual distrust if medical dispute event ever broke out.
2. Relationship between Patients and Care Providers
The obscure negotiation and litigation processes have severely undermined the mutual trust between patients and their care providers. Patients feel that they are not protected by a fair court system, and often wary of hospital’s reconciliation effort (or lack thereof). The medical practitioners, on the other hand, tend to view patients' complaints as either financially-motivated or triggered by post-trauma emotional instability. The lack of trust makes patients and their families prone to immediately relate the misadventure with malpractice, and refuse to consider the inherent risk in all medical treatment. On the other hand, the healthcare providers begin to adapt more protective medicine in order to avoid these responsibilities.
3. Posttraumatic Supports and Education
Support and education for the families or patients who is or has been experiencing the medical dispute are uncommon in Taiwan. The patients and their families usually need to deal with the emotional and economical stresses alone after the medical accidents. In some cases, patient and the family would resort to extreme or even violent actions when they are not satisfied with the court rulings or the hospital’s responses..
The Taiwan Healthcare Reform Foundation is providing medical dispute consulting services to the public. While currently we do not have ability to provide direct medical or legal assistances, we offer information and advices on where and how to get these helps. The public is able to contact us and discuss their cases through email or phone. THRF also provide free leaflet: “Medical Dispute Guidelines?to the public. The leaflet includes guidelines on how to prepare a medical litigation, how to seek various consultants, and many other information regards to the medical dispute.
In 2001, the Taiwan Healthcare Reform Foundation helped establish a community for the patient and family members who suffered from medical disputes. Those who joined the community could share their experiences and help each others. This community is now independent from THRF, and planning to transform into full fledge NGO “The Taiwan Health Association of Medical Dispute (THAMD) in the near future. THRF and THAMD would continue work closely to aid people who struggles with the medical disputes.