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助産師資格のない看護師等の内診が意味すること（第二報） : 助産の法的概念と助産師の法的責任
平塚, 志保
Permalink : http://hdl.handle.net/2115/35414
JaLCDOI : 10.14943/33833
KEYWORDS : nurse-midwife;Public Health Nurse;Midwife and Registered Nurse Act;legal liability;legal concept of midwifery;medical practic;助産師;保健師助産師看護師法;法的責任;助産の法的概念;医業
Abstract
助産の法的概念と助産師の法的責任について，医師法，保健師助産師看護師法，医療法等の法規定，および分娩経過中に助産師が関与した判例をもとに検討し，以下を結論した。1.法的に助産（分娩介助）は（絶対的）医行為であり，助産師には裁量がある。2.助産師の分娩経過中の過失は，異常の予見可能性と不適切な判断の2点を中心に認定されている。3. 助産師は，分娩時の異常の状態の判断について単独で責任を間われる。4. 異常発生の予見可能性について，助産師は医師と同等の注意義務を負っており，助産師一般，あるいは平均的助産師を基準に判断される。5. 助産師は，異常の予見義務について医師との共同責任が問われることもあるが，医師の監督指導責任下にはない。6. 助産師の医師への連絡・報告義務は，助産師の責任下にある。助産師は，正常分娩を自ら介助するのみならず，保健師助産師看護師法第38条のもと，医師への連絡の要否を判断し得る専門的教育訓練を受けており，助産師が分娩経過を観察している場合，医師の分娩監視義務（診療義務）は，問われない。7. 分娩経過中の観察（含内診）は，必然的に観察と判断（助産診断）が連続して行われる。このため，助産(分娩介助)という行為の性質は医行為とされる。
This paper examined the legal concept of midwifery and its associated legal liability based on regulations, including the Medical Practitioners Law, the Public Health Nurse, Midwife, and Registered Nurse Act, and the Medical Practice Act and civil affairs judicial precedents in which midwives have been involved in the process of delivery. The author reached the following conclusion. 1. Midwifery can legally be an absolutely independent medical practice in which nurse-midwives have clinical discretion. 2. The negligence of nurse-midwives is evaluated on the basis of the predictability of any abnormalities that may arise and the adequacy of their judgments at delivery. 3. Nurse-midwives can be held solely responsible for their judgment as to the progress and potential complications of delivery. 4. With respect to the predictability of complications during delivery, nurse-midwives have an equivalent duty as physicians to provide prudent, competent care and thoughtful judgment that takes into account any problems that may arise. 5. There are circumstances in which corporate responsibility with physicians is held; however, the physicians' responsibility as a supervisor is not typically applied to nurse-midwives. 6. Nurse-midwives are responsible to report to and/or consult physicians. In addition to helping with normal births, nurse-midwives have sufficient professional training to judge on a case-by-case basis the necessity of reporting to doctors, according to Article 38 of the Public Health Nurse, Midwife, and Registered Nurse Act. In situations in which am idwife is observing the delivery process, the physician is not obligated to observe delivery directly. 7. Throughout the delivery, a nurse-midwife should continuously utilize their observational skills and clinical judgment (midwife's diagnosis) to ensure a safe, successful delivery. Therefore, the nature of a midwifery practice is the same as that of a medical practice.
This paper examined the legal concept of midwifery and its associated legal liability based on regulations, including the Medical Practitioners Law, the Public Health Nurse, Midwife, and Registered Nurse Act, and the Medical Practice Act and civil affairs judicial precedents in which midwives have been involved in the process of delivery. The author reached the following conclusion. 1. Midwifery can legally be an absolutely independent medical practice in which nurse-midwives have clinical discretion. 2. The negligence of nurse-midwives is evaluated on the basis of the predictability of any abnormalities that may arise and the adequacy of their judgments at delivery. 3. Nurse-midwives can be held solely responsible for their judgment as to the progress and potential complications of delivery. 4. With respect to the predictability of complications during delivery, nurse-midwives have an equivalent duty as physicians to provide prudent, competent care and thoughtful judgment that takes into account any problems that may arise. 5. There are circumstances in which corporate responsibility with physicians is held; however, the physicians' responsibility as a supervisor is not typically applied to nurse-midwives. 6. Nurse-midwives are responsible to report to and/or consult physicians. In addition to helping with normal births, nurse-midwives have sufficient professional training to judge on a case-by-case basis the necessity of reporting to doctors, according to Article 38 of the Public Health Nurse, Midwife, and Registered Nurse Act. In situations in which am idwife is observing the delivery process, the physician is not obligated to observe delivery directly. 7. Throughout the delivery, a nurse-midwife should continuously utilize their observational skills and clinical judgment (midwife's diagnosis) to ensure a safe, successful delivery. Therefore, the nature of a midwifery practice is the same as that of a medical practice.
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