| Abstract: | 我國全民健康保險自1995年3月1日開辦以來，至今已17年有餘。由於醫療科技進步、疾病嚴重度改變、台灣進入老年化社會，以及物價成長、保費收入長年無法調整、支付制度執行偏差、醫療資源遭到濫用等因素，良善之政策變成政府、醫界與全民的災難。本研究之重心在於探討現行全民健康保險包括支付制度在內的給付制度之合理性，以及健保局因特約醫事機構之醫療過失對保險對象之責任。本研究主要以文獻分析法掌握、分析歷年產官學界學者之學說，回顧既有之實務見解，參酌全民健康保險法制之立法、修法歷程，以及醫界、法界實務運作情形，最後提出本文之論證、見解與建議。對於全民健康保險制度中各法律主體間之法律關係，本文提出與其他學者相異之見解：健保局與保險對象間之「健保關係」為「類似行政契約」之雙方行政行為關係或「準行政契約」關係；健保局與特約醫事機構之「特約關係」係屬對等行政契約之雙務規範契約，為行政委託，有處理健保相關行政事項與給付行政行為等公權力之授予；特約醫事機構與保險對象之「醫療關係」基本上仍為私法醫療契約，但有相當部分實具有公法面向。特約醫事機構於執行醫療行為時因過失侵害保險對象之權益，通說認為醫療糾紛之損害賠償責任僅存於醫病之間，無國家賠償之適用，但本文認為健保局是否應負國家賠償之責，仍有待商榷。全民健康保險包括支付制度在內之給付制度，本文認為於保險對象範圍、承保範圍、部分負擔、健保代位求償、「全民健康保險醫療費用支付標準」與「全民健康保險藥價基準」、醫療費用專業審查，以及總額支付制度之理論、流程、實施、微觀調控方案包括DRGs支付制度等方面存有不合理之處，或呈現動員偏差、執行偏差等問題，有悖於實質正當性、法律保留原則，亦違反實質之平等原則。本文分別就各項不合理之處提出建議，以作為制度改善之參考。
It has been more than 17 years since national health insurance was first offered on March 1, 1995. Owing to such factors as advances in medical technology, changes in the severity of diseases, the ageing of Taiwanese society, increases in the cost of living, the difficulty of adjusting health insurance premium rates, deviations from planned implementation of the payment system, and the abuse of medical resources, this originally good policy has turned out to be a disaster for the government, the medical community, and the people. This study focuses on the rationality of the current national health insurance payment system and the responsibility of the Bureau of National Health Insurance to the insured with regard to medical malpractice of contracted medical care institutions.Our study uses literature analysis to analyze the theories of scholars and experts in the field, reviews existing practical opinions, and considers the legislative history of the national health insurance system, and practical implementation of the system in medical and jurisprudential circles. Finally we present our evidence, opinions, and proposals on the topic.Regarding the legal relationship between legal principles and the national health insurance system, the opinions we propose differ from those of other scholars. We propose that the“health insurance relation”–that is, the relationship between the Bureau of National Health Insurance and the insurance object–is a quasi-administrative contract or prospective administrative contract. We also propose that that the“contracted relation”–that is, the relationship between the Bureau of National Health Insurance and contracted medical care institutions–is a bilateral normative contract, which is a kind of equal administrative contract. Thus the contracted medical care institutions have an administrative commission and are given public power to deal with health insurance-related administrative matters and administrative behavior with regard to payment. We propose that the“medical relation,” the relationship between contracted medical care institutions and the insurance object, is a private medical contract basically, but there is a portion of dimension that involve in public law. Therefore, whether the Bureau of National Health Insurance should take responsibility of state compensation or not if the contracted medical institutions act negligently against the interests of insurance objects while they are performing their duty is still controversial.We are of the opinion that there are irrational portions in the insurance payment system, such as the range of insurance objects; the range of insurance coverage; the part of burden; the subrogation right of the Bureau of National Health Insurance; the national health insurance medical expenses payment standard; the national health insurance drug prices benchmark; professional review of medical expenses; and the theory, process, implementation, and micro-adjustment scheme of the global budget payment system, including the DRGs payment system, etc, or it presents deviations from planned mobilization and implementation. These irrational portions run contrary to real legitimacy and the principle of legal reservation, and violate the principle of real equality. We offer our recommendations regarding these irrational portions in the hope that the authorities can take them into consideration in order to make systemic improvements. |
