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指導教授：周天 所長 報告人：隨班附讀生

96AL027盧建賓

國立高雄第一科技大學科技法律研究所案例討論

課程：醫療與法律

案號： Ostrowski v. Azzara (111 N.J. 429)

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案例討論

Diabetic, cigarette-smoking patient brought medical malpractice action against physician for allegedly performing improper removal of toenail.

Eleanor OSTROWSKI,Plaintiff-Appellant, v.s Lynn M. AZZARA, D.P.M.(兒科醫師） ,Defendant-

Respondent.

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The Supreme Court

Reversed and remanded.

Lynn M. AZZARA,

D.P.M., Defendant-Respondent

.（被告）

撤銷原判決發回更審

Eleanor OSTROWS

KI, Plaintiff-

Appellant,（原告）

消費者

The Superior Court, Appellate Division

affirmed

The Superior Court,

Law Division disallowed any recovery,

and patient appealed.

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審級（ Procedures ） The Superior Court, Law Division, disallowed any

recovery, and patient appealed. The Superior Court, Appellate Division, affirmed,

and certification to review was granted. Supreme Court of New Jersey. Reversed and

remanded. 美國法院分為州法院系統及聯邦法院系統，雖然一般認為州法院系統的第一審地方法院多半翻為 District Court，但亦有許多州的第一審地方法院名稱就是 Supreme Court，例如紐約州

。

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事實一（ Facts 1 ） On May 17, 1983, plaintiff, a heavy smoker and an insulin-dependent

diabetic for twenty years, first consulted with defendant, Lynn Azzara, a doctor of podiatric medicine（內科醫師） , a specialist in the care of feet.

Plaintiff had been referred to Dr. Azzara by her internist whom she had last seen in November 1982.

Dr. Azzara‘s notes indicated（做… 治療） that plaintiff presented a sore left big toe, which had troubled her for approximately one month, and calluses（繭） . She told Dr. Azzara that she often suffered leg *433 cramps that caused a tightening of the leg muscles or burning in her feet and legs after walking and while lying in bed.

She had had hypertension (abnormally high blood pressure) for three years and was taking a diuretic （利尿劑） for this condition.。

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Dr. Azzara ordered a fasting blood sugar test and a urinalysis（驗尿） ; she also noted that a vascular examination should be considered for the following week if plaintiff showed no improvement.

Plaintiff next saw Dr. Azzara three days later, on May 20, 1983. The results of the fasting blood sugar test indicated plaintiff's blood sugar was high, with a reading of 306. The urinalysis results also indicated plaintiff's blood sugar was above normal.

At this second visit, Dr. Azzara concluded （推斷） that plaintiff had peripheral vascular disease, poor circulation, and diabetes with a very high sugar elevation（上升） .

She discussed these conclusions with plaintiff and explained the importance of better sugar maintenance. She also explained that a complication of peripheral vascular disease and diabetes is an increased risk of losing a limb

（截肢） if the diabetes is not controlled. The **150 lack of blood flow can lead to decaying tissue（組織腐爛） .

Dr. Azzara merely suggested to plaintiff that she see her internist.

事實二（ Facts 2 ）

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事實三（ Facts 3） In any event, plaintiff came back to Dr. Azzara on May 31, 1983, and,

according to the doctor, reported that she had seen her internist and that the internist had increased her insulin and *434 told her to return to Dr. Azzara for further treatment because of her continuing complaints of discomfort about her toe. （報告她已經看過她的內科醫生，該醫生已經增加她的胰島素，並且告訴她返回這裡繼續診查她所抱怨不舒服她的腳趾）

However, plaintiff had not seen the internist. Dr. Azzara contends that she believed plaintiff‘s representations. （不過，原告並沒有去看她的內科醫生，但被告堅定的相信她的說法。）

A finger-stick glucose test administered to measure plaintiff‘s non-fasting blood sugar yielded a reading of 175. A physical examination of the toe revealed redness and drainage from the distal medial (outside front) border of the nail, and the toenail was painful to the touch. Dr. Azzara’s proposed course of treatment was to avulse, or remove, all or a portion of the toenail to facilitate drainage.（做些檢查）

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事實四（ Facts 4） Plaintiff executed a consent form authorizing Dr. Azzara

to perform a total removal of her left big toenail. The nail was cut out. （原告同意切除腳趾甲）

Two days later, plaintiff saw her internist （ Dr. Bergman） . He saw her four additional times in order to check the progress of the toe. As of June 30, 1983, the internist felt the toe was much improved. While plaintiff was seeing the internist, she continued to see Dr. Azzara, or her associate,. （一邊看內科醫師、一邊也給被告看診或被告的同事看診）

During this period the toe was healing （康復） slowly, as Dr. Azzara said one would expect with a diabetic patient.（醫生期望）

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事實五（ Facts 5） During the time plaintiff was being treated by her internist

and by Dr. Azzara, she continued to smoke despite advice （忠告） to the contrary（對立） . Her internist

testified （表明） at the trial that smoking accelerates （加速） and aggravates （加重） peripheral vascular disease （周邊血管疾病） and that a diabetic patient with vascular disease can by smoking accelerate the severity of the vascular disease by as much as fifty percent. （抽煙加劇血管惡化多達百分之 50）

By mid-July, plaintiff's toe had become more painful and discolored.

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爭點（ Issues ） plaintiff**151 argues that defense counsel was permitted to

interrogate （質問） the plaintiff extensively （廣泛） on her post-avulsion （撕裂） and post-bypass health habits, and that the court allowed such evidence of plaintiff‘s health habits during the six weeks after the operation to be considered as acts of comparative negligence （比較過失） that could bar recovery rather than reduce her damages.（上述證據是阻礙恢復而非降低她的損害之比較疏忽行為）

The jury found that the *436 doctor had acted negligently in cutting out the plaintiff's toenail without adequate consideration of her condition, but found plaintiff's fault (fifty-one percent) to exceed that of the physician (forty-nine percent).

She was therefore disallowed any recovery.

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抗辯一（ Arguments1 ） 原告主張： 1. Plaintiff claims that it was the podiatrist‘s （足科醫師） failure to consult with the patient’s internist。 2.defendant‘s failure to establish by vascular tests that the blood flow was sufficient to heal the wound, and to take less radical care, that left her with a non-healing, pre-gangrenous （壞疽） wound, that is, with decaying tissue.

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抗辯二（ Arguments2） 被告主張： At trial, defense counsel （辯護律師） was

permitted to show that during the pre-treatment period before May 17, 1983, the plaintiff had smoked cigarettes and had failed to maintain her weight, diet, and blood sugar at acceptable levels. 「 The trial court allowed this evidence （證據） of the plaintiff‘s pre-treatment health habits to go to the jury on the issue of proximate cause（主力原因） . 」

Defense counsel elicited （誘出） admissions （承認） from plaintiff‘s internist and vascular surgeon that some doctors believe there is a relationship between poor self-care habits and increased vascular disease, perhaps by as much as fifty percent 。

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判決（ Judgment ） The judgment of the Appellate Division

is reversed and the case is remanded to the Law Division for a new trial.（撤銷原判決並發回更審）

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判決理由（ Reasoning 1） 法官認為： posttreatment conduct of patient

may be submitted to jury on question of whether mitigation （減輕） or apportionment （分攤） of damages can be expressed in terms of patient‘s fault, but patient’s fault will not be a bar to recovery except to extent that her fault caused damages。 （病患在醫療後的自行處理可能會使陪審團認定 , 不論是減低或分散了損害 , 皆可陳述為是病患的錯 . 但是病患的錯並不至於形成復原的障礙 , 除非這個錯誤造成了某種程度的損害）

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判決理由（ Reasoning 2）

法官認為： trial court‘s instructions failed to distinguish between preoperative （手術前）and postoperative （手術後） conduct which could serve only to mitigate her damages as opposed to conduct which could serve to avoid any recovery（初審法院的說明並沒有區別出術前術後的處理何者可減輕他的損害相反的何者會造成他無法復原。）

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判決理由（ Reasoning 3） 法官認為： trial court‘s instruction

improperly permitted jury to bar patient entirely from recovery of damages that were attributable to physician（初審法院的說明當中不適當地容許陪審團完全排斥病患藉由內科醫師的力量得到復原。）

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判決理由（ Reasoning 4） 法官認為： Comparative negligence （比較過失） is a legislative

amelioration （改良） of the perceived harshness （嚴酷） of the common-law （不成文法） doctrine of contributory negligence（與有過失） . 「比較過失是與有過失的普通法原理被察覺嚴酷的立法改良。」

Comparative negligence was intended to ameliorate the harshness of contributory negligence but should not blur （模糊不清） its clarity. It was designed only to leave the door open to those plaintiffs whose fault was not greater than the defendant‘s, not to create an independent gate-keeping function. 「比較過失是意圖改善與有過失的嚴酷，但是不應該使它清徹變模糊。而僅是設計錯誤不比被告大，並不是建立一個獨立的保護功能。」

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評論（ Discussion ） 請求權基礎： 1、侵權行為：民法第 184條第 1項前段。第 2項 （舉證責任之倒置）規定。 醫療法第 63條第 1項規定。 2、債務不履行：民法第 227條第 1項、第 2項。 第 544條規定。 3、過失相抵：民法第 217條第 1項、第 2項。 4、 The concepts of avoidable consequences （可避免的結果） , the particularly susceptible victim, aggravation of preexisting condition（加 重的前行為） , comparative negligence（比較過失 ） , and proximate cause （主力近因） each play a part.