20 July 2021
The Supreme Court rendered the 109-Tai-Shang-2496 Decision of December 16, 2020 (hereinafter, the “Decision”), holding that if an evidentiary method based on the stated intention of the parties is related to the matters to be proven, it shall not be predetermined that since results are difficult to obtain, no investigation is required for a lack of necessity, or the principle that predetermination of evidence shall be prohibited is violated.
According to the facts underlying this Decision, the Appellant asserted that he had suffered a closed fracture of the twelfth thoracic vertebra as a result of a car accident and was treated at the Appellee’s Hospital A, where the Appellee, Physician B employed by such hospital, performed a vertebroplasty surgery (the first surgery). However, B neither communicated other possible alternative treatments, risks associated with the surgery, complications, etc., before the surgery nor carefully examined the Appellant before the surgery, resulting in the incorrect surgical site and failing to perform the originally agreed balloon vertebroplasty. The second surgery was delayed because a CT scan was not used immediately after the surgery to identify the leakage of the bone cement as early as possible. Since the bone cement had already solidified, the surgery was not effective. As a result, B performed the third surgery. However, since the functions of the Appellant’s central nervous system is permanently diseased, the Appellant is unable to work for the rest of his life, needs assistance from a dedicated person with putting on and taking off his clothes, defecation and bathing and suffers from damage such as medical expenses, medical transportation expenses, nursing expenses, impairment of labor capacity, living aids, and a solatium payment, etc., which shall be jointly and severally compensated by the Appellee. Therefore, a court decision that compels the Appellee to jointly and severally pay damages was sought in accordance with the first part of Article 184, Paragraph 1, Article 188, Paragraph 1, Article 193, Paragraph 1, Article 195, Paragraph 1, Article 224, Article 227, Paragraph 2 and Article 227-1 of the Civil Code.
According to the Decision, Article 286 of the Code of Civil Procedure provides that the court shall investigate evidence stated by the parties unless such investigation is unnecessary since it is irrelevant to the facts to be proven, does not affect the basis of adjudication or has absolutely no evidentiary value, or the period for investigating the evidence cannot be scheduled due to difficulties, or the litigation facts have become clear and the court has solidified its inner conviction. Therefore, if an evidentiary method based on the purposes of a party’s statement is relevant to the matters to be proven, it is not appropriate to predetermine that no investigation is required for a lack of necessity due to the difficulties of obtaining the results. Otherwise, the principle that “predetermination of evidence should be prohibited” would be violated.
It was further stated in this Decision that the Appellant suffered from bone cement leakage after the first surgery. In the Letter of Consent and Instructions for Vertebroplasty Surgery at Hospital X produced in the original trial, the Appellant asserted that according to medical practice, B should have performed a CT scan immediately after the first surgery to confirm the condition after the surgery, but failed to do so out of negligence, and requested the medical review committee to raise additional questions concerning whether there was “bone cement leakage” and whether a CT scan was performed immediately after the first surgery. The Letter of Consent and Instructions for Vertebroplasty Surgery indicates: “Points to note after treatment: a CT scan should be performed immediately afterward to check if there is any cement leakage. The artificial bone cement will harden completely within 10 minutes”, “Benefits of the surgery: 90% of patients have significant pain relief ____ within 48 hours after surgery,” and “Risk of the surgery: complications include nerve or spinal cord compression due to cement leakage, requiring emergency surgery if necessary.” Without investigating if a CT scan should be performed immediately after the vertebroplasty surgery to check if measures such as emergency surgery are required due to bone cement leakage or providing the basis as to why the Appellant’s explanation about his offensive method is unacceptable, the original trial court was rash when it elected to hand down a decision unfavorable to the Appellant. The gist of the arguments for the appeal, which criticize the original decision for violation of laws and regulations, is not groundless.
For further information, please contact:
Frank Sun, Lee Tsai & Partners
lawtec@leetsai.com
