以區塊鏈技術作為減少醫療訴訟之可能性之探討

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Title:	以區塊鏈技術作為減少醫療訴訟之可能性之探討
Other Titles:	The Exploration of Medical Malpractice Claim Reduction Strategy Based on Blockchain Technique
Authors:	陳育仁 CHEH, YU-JEN
Contributors:	吳金山 WU,CHIN-SHAN 高階經營管理碩士在職專班
Keywords:	區塊鏈;電子病歷;醫療糾紛;侵權行為;債務不履行 BLOCKCHAIN;ELECTRONIC MEDICAL RDCORD;MEDICAL CLAIM;TORT;DEBT FAILURE
Date:	2019
Issue Date:	2019-12-16T04:22:56Z (UTC)
Abstract:	本研究旨在探討，傳統民事醫療訴訟糾紛中，病歷為證據之王，包括醫事審議委員會之鑑定事項亦依賴原告與被告能提供充份且完整之病歷資料，作為釐清責任之基礎，但在訴訟實務上，關於病歷記載內容之真實性、病患同意書上所記載之事項是否醫師有確實踐行告知內容並使病患能充分知悉了解? 本身即為訴訟攻防之要點，也因此造成醫、病間缺少互信，醫療糾紛從未間斷。且不僅病患敗訴率高，對於勝訴之醫師也因為面臨冗長之訴訟程序而不敢進行積極性之治療方針，其結果對於醫學發展之環境顯然不友善。我國在106年12月通過醫療法第82條之修正，減輕醫師之責任，則對於病患之一方加重了舉證責任，於訴訟之天平上向醫師傾斜，對於病患顯然是不公平，再加上由於病患在民事訴訟上應先負擔舉證責任，造成舉證困難之敗訴原因並未消失，實質上也未能解決病患對於「真相」之追求，也因此除了訴訟外的方式例如抬棺抗議、丟雞蛋、撒冥紙等社會爭議手段也會出現在醫療糾紛之中。為了能讓素有沉默證人之稱的「病歷」保持內容之完整與純潔，透過最新發展的區塊鏈技術來取代過往集中式、雲端保存之電子病歷，配合個人穿戴裝置讓醫師所有的診療行為能即時保存於區塊鏈之中，病患也能成為病歷的保存者之一，而達到對於電子病歷內容完整之信賴。區塊鏈所保存之電子病歷，除了具有隱密性，可以保護個人隱私不會被外洩或更改以外，有鑑於過去病患同意書上缺乏第三方監督機制，病患認為同意書可能事後遭到竄改、變造，故藉由區塊鏈將醫師告知內容、病患同意書等重要文書即時保留於區塊鏈之中，可以有效促使醫師在進行醫療告知義務及從事醫療行為時善盡其注意義務，確保病患在此一過程中能充分知悉、了解醫療風險之後，基於病患自主權與醫師共同作成醫療決策，如此當發生未如預期之醫療結果時，就可以根據保存於區塊鏈中之資料作正確的判斷，而病患也能相信最終之判斷依據是來自於正確的病歷。最後，由於醫療法的修正，減輕了醫師與醫療院所的民事責任，因此基於衡平原則，建構區塊鏈技術病歷之成本，應由醫師及醫療院所提供，而且醫療糾紛發生之際，對於醫院醫療風險之管理，都是增加成本，若能有效減少醫療糾紛就能有效減少醫療風險管理之支出，故應該立法由醫師或醫療院所來負擔成本。 The purpose of this study is to investigate that in traditional medical civil litigation disputes, the medical record is the main point among the evidence. The identification and assessment of the medical review committee also relies on the plaintiff and the defendant to provide sufficient and complete medical record information as the basis for clarifying the responsibility. But in litigation, the authenticity of the medical record and the items recorded on the patient consent form are actually implemented the notification and made the patient fully awar of it? It is the main point of litigation and defense, which also leads to lack of mutual trust between doctors and patients, and medical disputes have never stopped. Those circumstances lead to the lack of mutual trust and continual occurrence of medical disputes between the patient and the doctor. Not only the patients are likely to lose their cases, but the doctors that win the cases may also become timid in the future to adopt any proactive medical treatment after undergoing such lengthy litigation procedures. The results are obviously unfriendly to the medical development. In December 2017, Taiwan passed the amendment to Article 82 of the Medical Care Act to alleviate the responsibility of physicians, which means the burdens of proof on the patients are increased on the contrary. Initially, the patient as a plaintiff bears the burden of proof in the civil lawsuit, and now the scale of the lawsuit tilting towards the doctor makes the situation even more unfair to the patient. The amendment does not eliminate the causes of the failure to prove the evidence, nor enable the patients to pursue the "truth" of their cases, and therefore several controversial manners such as raising the coffin, throwing eggs or scattering ghost papers to protest by the patients and their relatives often appear during medical disputes. In order to keep the "medical record", which is often known as a silent witness, to maintain its integrity and completeness, the electronic medical records which are previously centralized and cloud-stored may be replaced by the latest developed block chain technology. With the help of the personal wearable device, all medical treatments conducted by the physicians are able to be stored instantly in the block chain, and the patient may also become one of the preservers of the medical record. The reliance on the completeness of the electronic medical record shall be ensured accordingly. With confidentiality, the electronic medical records stored in the block chain prevent personal privacy from being leaked or altered. In addition, for lack of third-party surveillance system in patient consent in the past, patients suppose that the letter of consent may be tampered or altered afterwards. By instantaneously retaining the important information such as the physician's notification and patient consent in the block chain, it may effectively urge the physician to pay attention while fulfilling his medical notification obligation and conducting medical treatments, and ensure that patients are fully aware of and understand the medical risks before they claim their autonomy to make medical decisions mutually with their physicians. When encountering unexpected medical outcomes, an accurate judgment shall be reached according to the information stored in the block chain. Thus the patients will believe that the eventual judgment is relied on the correct medical records. In conclusion, due to the revision of the Medical Care Act, the civil liability of doctors and medical institutions has been alleviated. Accordingly, the costs and expenses of constructing the block chain technical medical records should be borne by the doctors and medical institutions based on the principle of equity. Moreover, when medical disputes occur, the costs of managing medical risks in hospitals shall increase. Suppose medical disputes may be effectively reduced, the expenditures on medical risk management may then be effectively reduced as well. Therefore, it is necessary to legislate for those above-mentioned costs to be paid by the doctors or medical institutions.
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