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Home > LAWREVS > WILJ > Vol. 16 > No. 3 (2007)

 

Washington International Law Journal

Ya-Ling Wu

Abstract

The issue of whether or not no-fault liability under the Consumer Protection Law (“CPL”) applies in medical malpractice disputes has been a contentious battle in Taiwan. In Bo-Li Li v. Mackay Memorial Hospital, the Taipei District Court interpreted medical care as “services” under Article 7 of the CPL. Under this interpretation, patient services must meet “reasonably expected safety standards,” while health care providers are subject to no-fault liability. This interpretation was strenuously opposed by the medical profession and invoked much debate over its validity in the legal field. After the Bo-Li case, the lower courts expressed different views on this issue. The Taiwan Supreme Court was also silent for seven years until recent decisions where the Court refused to apply the CPL to medical malpractice. Despite this, it is still unclear whether the interpretation will be codified, as the Legislature was reluctant to exclude medical care from the reach of consumer protection. The Bo-Li case reveals current policy and practicability concerns in Taiwan. Under the current scheme, it is difficult to prove the culpability of doctors in medical injury cases. Thus, no-fault liability under the CPL may serve as an alternative avenue to compensate victims. However, Taiwan does not have an insurance network and social welfare system that is favorable to this possibility. Under the current arrangement in Taiwan, instituting no-fault liability would eventually force health care providers to practice defensive medicine. Weighing all these factors, this Comment proposes that no-fault medical liability is currently impractical. Instead, Taiwan should aim to resolve issues under the current scheme to improve the litigation process, strengthen the duty of informed consent, and increase the use of malpractice insurance.

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