推 Duarte:你這樣子解讀我的話, 我感到很遺憾. 05/06 11:39
→ Duarte:至於林教授那篇文章我以前就看過, 我並不認同他的看法. 05/06 11:49
→ CKun:無意冒犯, 可以分享你的看法嗎? 05/06 12:15
推 Duarte:舉證責任越重, 就越容易輸啊. 你想知道怎樣的看法? 05/06 12:37
: 推 johnliou:所以啦,防衛性醫療將成為現代醫療的主流不是沒有道理的 05/06 07:12
: → johnliou:醫師的一切醫療處置必須留下跡證以證明不會對病患造成 05/06 07:13
: → johnliou:傷害或和病人病情的惡化無因果關係... 05/06 07:13
在美國不是什麼醫糾都適用, 常見的案例包括
手術後不小心將異物留在病人體內
用於治療病人的某項物質起火或爆炸
開刀時開錯病人或開錯部位
至於台灣? 天曉得.....
:
: 推 Duarte:我不太相信這位 "林教授" 的法律見解XD 他可是外科教授. 05/06 08:17
: → Duarte:不是法律學的教授 ~.~ 05/06 08:17
0rz.....
評論一件事不應該依據該員的身份地位,而是當中是否有真理存在吧
我們直接看英文
http://www.medicalmalpractice.com/Res-Ipsa-Loquitur.cfm
If a patient is injured as the result of a medical procedure does not
know exactly what caused his or her injury, but it is the type of
injury that would not have occurred without negligence on the part of
his or her health care provider(s), he or she may invoke a legal
doctrine known as "res ipsa loquitur."
To invoke this doctrine successfully, a plaintiff has to show that:
1. Evidence of the actual cause of the injury is not obtainable;
2. The injury is not the kind that ordinarily occurs in the absence
of negligence by someone;
3. The plaintiff was not responsible for his or her own injury;
4. The defendant, or its employees or agents, had exclusive control
of the instrumentality that caused the injury; and
5. The injury could not have been caused by any instrumentality
other than that over which the defendant had control.
Once this doctrine is successfully invoked, the burden is not on the
plaintiff to show how the defendant was negligent, but on the defendant
to show that he or she was not negligent.
關於上面第二點的常識,各州看法不一
我相信仇醫的台灣法院應該是傾向後者
http://www.loblawyers.com/library/res-ipsa-loquitur-and-
medical-malpractice-lawsuits.cfm
Some states assert that where expert testimony is used, the doctrine of
res ipsa loquitur is unnecessary and inapplicable since the matter at
issue is not of common knowledge. (e.g. complex surgical procedure)
Other states disagree, since the facts and procedures at issue
essentially become the common knowledge of the jurors (through the use
of such testimony), allowing the jurors to infer negligence.
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