Challenges of Medical Expert Opinions After the Amendment of the Code of Criminal Procedure

Preface: The Central Role of Medical Expert Opinions in Medical Malpractice Cases

Medical expert opinions serve as a crucial tool in determining liability of healthcare professionals in medical malpractice cases. They are key to safeguarding patient rights and improving healthcare quality. According to Article 82 of the Medical Care Act, medical personnel are held civilly and criminally liable only when they have “violated the necessary duty of care in medical practice” and “exceeded the reasonable scope of clinical discretion.” However, due to the unpredictability, expertise, and complexity of medical behavior, it is extremely difficult for the patient to directly prove the physician’s breach, or for prosecutors and judges without medical training to make such assessments. Therefore, in practice, judgments are heavily reliant on medical expert reports, which often become the focal point of litigation.

I. Key Points of the Amendment to the Code of Criminal Procedure

To address the complexity and need for expert testimony in medical dispute cases, Article 206 of the Code of Criminal Procedure was amended on July 31, 2024. The revised article stipulates that a written expert report cannot be admitted as evidence unless the parties explicitly agree; otherwise, the expert must appear in court to give an oral explanation and undergo cross-examination. Article 208, Paragraph 2, also requires that the individual who actually performed the examination or review be named in the report. These changes aim to strengthen evidentiary value, protect the right to confrontation, and increase transparency and credibility in expert procedures. However, despite the clarity of the new legal requirements, implementation in practice has encountered significant difficulties.

II. Practical Dilemma: Medical Review Committee's Refusal to Sign Reports

Medical evaluations commissioned by judicial or prosecutorial agencies are primarily conducted by the Ministry of Health and Welfare’s Medical Review Committee (MRC), pursuant to Article 98 of the Medical Care Act. According to Point 5 of the Medical Dispute Appraisal Guidelines, the MRC first has an initial review by a physician who provides a preliminary opinion. The case is then discussed by a medical expert panel to produce the final report. Thus, the individuals who must be named are the members of the panel who participated in deliberation and decision-making[1].

However, after the amendment, MRC members have increasingly refused to sign reports due to concerns about offending peers or the patient’s family, or about incurring legal liability. This has led to a bottleneck in processing medical dispute cases during investigation or trial. According to reports, as of the end of May 2025, more than 700 such cases are stalled nationwide[2].

III. Trial Implementation of Medical Expert Opinion Letters

To address these concerns, the Ministry of Health and Welfare began a pilot program on May 1, 2025, for issuing “Medical Expert Opinion Letters.” In this system, experts anonymously review case materials and compile opinions for prosecutors to use as preliminary reference[3]. This approach alleviates the problem of unavailable expert reports during the investigative stage and offers a relatively low-risk method for expert participation. Similar to pre-amendment practices, only the name of the Ministry appears on the report, with no named individuals.

However, once a case moves to trial, it is important to note that such opinion letter is not recognized as formal evidence under the law. Such opinion letter is considered hearsay and are not admissible as evidence in criminal trials. As such, they cannot substitute for an official signed medical expert opinion subject to cross-examination in the trial proceedings. If the prosecutor files charges based solely on such opinion letter, the court will probably render a veridct that the defendant is not guilty due to insufficient evidence.

IV. Statutory Exceptions

According to Article 208 of the Code of Criminal Procedure, courts or prosecutors may commission other institutions such as hospitals, universities, or appropriate organizations to conduct expert evaluations or peer review of the expert opinion. Examples include the Institute of Forensic Medicine at National Taiwan University, the Medical Dispute Consultation and Appraisal Association of the Republic of China, and the Taiwan Society of Emergency Medicine[4].

However, to use expert evalutation reports from non-MRC entities as evidence, Article 208, Paragraph 3, requires either explicit consent of the parties or the designation of the institution by a competent authority. In such cases, the expert is not required to appear in court. Nevertheless, Paragraph 2 of the same article requires that the individual who conducted the evaluation "must be named" in the written report. Therefore, whether this exception sufficiently alleviates experts’ concerns and encourages participation remains uncertain and deserves further observations.

We argues that when the conditions under Paragraph 3 are met, the requirement under Paragraph 2 to name the expert shall also be waived. Since cross-examination is no longer applicable in these situations, requiring names would only unnecessarily increase psychological pressure on the experts, undermining the goal of broader expert participation.

V. Conclusion

While the amendments to Article 206 of the Code of Criminal Procedure strengthen procedural protections and the credibility of expert evidence, they have also disrupted practical operations in the legal and medical fields. The MRC’s refusal to sign expert reports has led to a significant disconnection between legislative intent and implementation. This article suggests that only through a combination of legal reform, incentive mechanisms, and outreach to the medical community can a feasible, legally sound, and widely supported system of medical evaluation be established—one that balances judicial fairness with healthcare safety.

It is worth noting that these requirements for cross-examination and naming experts apply only to criminal cases. In civil medical disputes, courts may still request evaluations from medical institutions under the institution’s name without identifying the specific expert. Such evaluations are not subject to evidentiary formalities like affidavits (see Article 340 of the Code of Civil Procedure).

References:

1. Judicial Yuan, Q&A on New Criminal Expert Evaluation Procedures, May 12, 2025: https://legal.judicial.gov.tw/FEXE/data.aspx?ty=E&id=FE390010

2. KNews, “700 Medical Dispute Cases Stalled as Doctors Refuse to Sign Reports,” May 30, 2025: https://knews.com.tw/news/D00EEF1837736F1F619D617F3422A566

3. Ministry of Health and Welfare: https://www.mohw.gov.tw/cp-16-82370-1.html

4. Ibid 2.