不起訴不当に対して、再度不起訴

検察が起訴に慎重でも、検察審査会はそうはいかないようですね。これからは本職が二の足を踏んだ案件が、素人の2度目の決定で起訴になることが出てくるのですね・・

　そして、公判検察官職務執行担当の弁護士先生が公判で大苦労されるのではないかと思います。

医師の逃散のように、検察官の逃散とか始まらないんでしょうか。検察審査会の起訴相当の判断２回で自動的に起訴なんて、専門職の判断を、素人判断であとから否定されつづける訳で、医師の場合と全く同じ構図に見えますが・・・
優秀な検事さんならばかばかしくなってやめちゃいませんか。ヤメ検弁護士としての方が、自分の能力を十分に発揮できることになりますものね。司法制度の質の崩壊は、医療崩壊に負けず劣らず、国家の崩壊につながる破壊力を持ってると思いますOrz

不当な検察審査会起訴が続いてくれば法律を改定するでしょう。５年くらいは我慢しないと(笑)

医師の逃散のように、検察官の逃散とか始まらないんでしょうか。検察審査会の起訴相当の判断２回で自動的に起訴なんて、専門職の判断を、素人判断であとから否定されつづける訳で、医師の場合と全く同じ構図に見えますが・・・

日本の刑事訴訟において、起訴率が低いというのであれば、検察審査会の「自動的に起訴」と言うのは賛成いたします。検察審査会の責任において、検察官の判断から漏れてしまったケースを掬い上げると言うのは、必要なことだと思います。

また、最終的には裁判所が判断するわけですから、素人判断であとから否定というのは、ちょっと違うのではないかと思います。むしろ、素人判断で起訴されたケースで、有罪になった方が検察官としては痛いのかも知れません。

＞医師の逃散のように、検察官の逃散とか始まらないんでしょうか。

　始まらないと思います。
　医師の場合と全く違います。
　検察官は不起訴の責任を問われません。

　検察審査会法の規定で起訴された事件が無罪になれば、やっぱり自分の判断は正しかったと思うでしょうし、有罪になれば、自分の判断基準を見直すことになるだけです。

皆様、コメントありがとうございます。

>始まらないと思います。

ヤメ検のモトケン様がそういわれるんだったらそうなのかもしれません。法曹の世界のことは全く素人でして・・・。

自分の理解として、検察官の不起訴の判断自体も、社会的にかなり重みをもった専門職の判断（仕事）であると考えていたのでそう思ったところがありました。刑事司法を抑制的に運用するさじ加減をしながら世の中をスムーズに回すための大事な社会的役割を担っているという誇りが検事さんにあるじゃないかなあと思ってました。

まあ裁判で明らかになればそれでいいじゃないかと言うのは、建前ではその通りかもしれませんが、最近の医師の刑事裁判に限らず、働き盛りの大切な時期を何年間も刑事裁判に費やして無罪判決が後から出るなんてことをたくさん繰り返すのは、本人だけなく社会にとっても損失が大きく、社会資源の無駄遣いの様な気がしてしまうんですよね。そういう意味で、検察官の不起訴の判断が、社会的にかなり大切な役割をこれまで担ってきていたわけで、それが代わり始めている今、今後、どういう方向に落ち着いていくのか、見守りたいと思います。

自分の理解として、検察官の不起訴の判断自体も、社会的にかなり重みをもった専門職の判断（仕事）であると考えていたのでそう思ったところがありました。刑事司法を抑制的に運用するさじ加減をしながら世の中をスムーズに回すための大事な社会的役割を担っているという誇りが検事さんにあるじゃないかなあと思ってました。

　「思ってました。」というのは過去形でしょうか？
　素人の集団である検察審査会で不起訴不当や起訴相当の議決が出たからといって検事のプロとしての誇りが傷つくわけではありません。
　しかし、検察審査会は民意の表れでもありますから、それを無視することもできません。
　それ（民意）が裁判所で認められたら、自己修正を図るのは当然のことです。
　裁判所で認められない場合であっても議決を無視しているわけではありません。「不起訴不当」、「起訴相当」の議決は検察庁で慎重に検討しています。

　医学は自然科学の領域でしょうけど、司法は社会制度なのです。
　そこの民意の反映が組み込まれているのです。

　検察審査会の議決というのは（広義の）司法制度の働きの一つなのですから、その結論によって検事の逃散など生じません。
　よっぽどプライドの高い検事は腹を立てて辞めるかもしれませんけど、そういう検事は検事として不適格ですから早く辞めてもらったほうがいいです。

モトケン様、コメントありがとうございます。
たしかにおっしゃるとおりかもしれません。もちろん過去形ではなく、それぞれの専門職の方々の仕事に対して敬意を持っています。

ついつい、医療の場合に当てはめて、ネガティブに考えちゃったようで大変失礼しました。

ご本人もスルーされている点なので、横から。。。

ヤメ検のモトケン様

悪意なく使用されているようにお見受けしますが、一般に「ヤメ検」（裁判官なら「ヤメ裁」）の呼称には、侮蔑的（自分で使えば自嘲的）な意味合いが込められていますので、ご留意下さい。

「元検事/検察官（弁護士）」とか「検事/検察官出身（弁護士）」とかのほうが無難です。

＞一般に「ヤメ検」の呼称には、侮蔑的な意味合いが込められていますので、ご留意下さい。

ご指摘ありがとうございます。知らないことばっかりで大変失礼いたしました。

　私は気にしてませんので（＾＾）
　ただし、一般的にはご注意を。

5.21 改正検察審査会法が施行
「医師が必ず起訴される制度」が始まろうとしている審査会経由の刑事事件が起こりそうですね。頻度は多くないと思われますが、大野事件や割り箸事件のような専門家と非専門家の意見が分かれる事態では十分可能性があります。ひとつの医療崩壊要因が加わります。

いつも興味深く読ましていただいております。突然ですがいつも疑問に思っているのですが、成功率９５％の治療というのは医師以外にとって非常に安全と感じるのでしょうか？20症例に1症例で治療効果がない（死亡を含む重篤な合併症も含む）状態になることですので20症例程度であれば急性期病院に勤務していればすぐ集まりますが？いかがなものでしょうか。また法律的には９５％成功するのにできない場合は医師の責任が存在するととらえるのでしょうか？はじめての投稿ですので失礼があるかもしれませんがご容赦ください。

　失礼があるとは思いませんが、ご質問の趣旨がよくわかりません。

申し訳ありませんでした。質問の趣旨は元外科医さんの「専門家と非専門家の意見が分かれる事態」というものが蓋然性に対する認識に由来するのではと考えておりまして「非専門家が９５％という高い確率で成功するはずがしなかったのは医療事故ではなく医療ミスによる」ととらえるのかもという漠然とした不安があり法律の専門家も医療の専門家ではないのでそのように認識されるのかと不安になったものですから。法律の専門家は確率についてどのように考えておられかという疑問でした。

　たぶんi田舎医師さんは、まだ法的責任の内容とその根拠についてほとんど理解されていないのだろうと思われます。

　まず、何についてのどのような確率を問題にしているのかをもっとはっきりさせていただかないとi田舎医師さんの問題意識自体が明確になりません。

　お暇があれば、
http://www.yabelab.net/blog/2008/11/15-114621.php
を手がかりに過去ログを読んでいただければ、答のヒントくらいは見つかるかも知れません。

何度も書き込み申し訳ありません。私の国語力の問題なのでしょうか。「一般的に考えて」とか「通常の注意さえ払えば」とか「社旗常識に照らし合わせて」といった曖昧さが不安をかきたてるのでしょうか。妻の実家の有床診療所に義父が高齢のため継承となりましたが、近隣の医療機関（公立診療所などを含む）がどんどん無床化していき当院から約３０ｋｍに入院施設がなくまた患者・家族が高齢化しておりその入院施設までの交通機関が不十分なため県外等に出た患者家族と患者の伴侶との意見が食い違うことがあったりしながら３次救急病院への搬送も拒否され入院を受け入れざるをえず。どんどん重症化してきておりDoA、DoBといった薬剤の使用、IVH管理や気管切開と通常診療所では考えられないような治療を行わなければならない状態となっております。「設備不十分だから危険なのでできません」といいたいのですが２．３年前のキャリア（妻も私も高度救急救命センター勤務経験がある）から納得してもらえないこととなっております。そのためどんどん訴訟リスクが上昇しているように感じられておりどこまでなら大丈夫なのか数値でしっかり表していただければとの趣旨で確率について疑問を呈させていただきました。妻の実家で長年地域医療を行っており簡単に無床化、閉院とできないとの思いがあります。

　背景はよーくわかりました。お気の毒ですが、無床化しか選択枝が無いように感じました。無床診ならまだいけると思われますが。
　現在、地域の公立病院でさえ、診療所化、無床化しつつあります。政府はベッド数をさらに減らし医療費を抑制するため各種の政策、誘導を行っていますので、抵抗するのはかえって傷口を広げてしまうような気がします。役に立たない返事ですみません。

社会保険病院の多くが赤字になるような診療報酬体系（設備費は入っていないのに）を決定している以上。一度崩壊しなければ、日本政府と、日本国民はわかりません。

　ｉ田舎医師さんの言われるのは、予想されるうる合併症を起こした場合、その合併症の頻度が通常では頻度が少ないものは訴訟して負けてしまうのではないかという懸念ではないかと思われます。その頻度を、数字的に知りたいということであると思いますけど。

　ある一定の確率で起こる不都合な事象（合併症）が起こること事態は責任とされないと思います。しかし、その対応が予想されることに対して一般的な医療水準に対して不十分であった場合、負けると解釈しています。

　一般的な医療水準というのが曲者で、鑑定する鑑定医がとんでもない鑑定を行うことが多くの問題訴訟や問題判決につながる一因ともなっています。
　そんなことで、一度判例ができてしまうと、後がそれに倣う為にどんどん現場が萎縮する結果となっています。
　鑑定医も最近は、批判にさらされるせいか慎重な鑑定結果をだすようですが、問題な発言をを繰り返しされる方もいるようです。
　訴訟や判決の多くの結果がトンデモ判決ということはなく、一部に見られるトンでもについては、医療側からの激しい非難が飛ぶ現状です。あまり、例外的なことに心配しつずけるのは得策ではなく、いかに有能な弁護士さんを確保するかということに力を入れたらどうでしょう。たとえば、顧問弁護士を確保するのには月5万円程度あればできると思います。保険料と考えれば、今なさっている危険からすれば、安いモンデはありませんか？少なくとも、火の手が上がらんうちに解決することが危険回避の第一条件のように思われます。

　私も、ｉ田舎医さんと同様な状況に迫られていますが、（大都市の中のエアポケットですが）私は、この地獄から開放される日を心から待ち望んでいます。だってうちの船は甲板の上に水が来てますから。船が沈んだら最後のボートで脱出する用意をしています。一緒におぼれる気はありませんから。
　この船が沈んだときにもたらす影響が、私のしてきたことの評価になるのかもしれません。（全然影響なかったら悲しいでしょう？）

i田舎医師 さん　実情、ご苦労、心痛をお察しします

診療所における医療行為をビジネスとして、書かせて下さい。

どのようなビジネスでも、リスクは存在します。（高い・低いの差はあります。）通常のビジネスは、リスクとリターンの関係で、GoやStopを決定できるが、医療はリターンが医療保険で決まっていることから、高リスクから逃れることが選択となる。選択が可能であればよいが、i田舎医師さんの場合は、逃れたら、地域の医療に大きなダメージを与えてしまう。医師として、人間として、地域の多くの人から医療を奪うことは自らを放棄することになりかねない。

無床化にしても、地域に与えるダメージは大きいから、簡単に選択できない。一方で、個人が、本来負担する必要のない程度にまで、負担を大きくして、矛盾を感じる。

そのような状態の中で、私が言うとすれば、（極めて勝手なことを言っていますので、余り真剣にとらないで下さい。）
１）重症者の入院は、極力断る。受け入れても、長期は避け、病院への転院を図る。
２）病院との提携。自診療所の能力限界を自らも設定し、その限界を関係先（他病院、自治体や地域の方々も含め）に示し、共同・連携しての解決を訴える。
３）保険料との関係はあるが、賠償責任保険は掛けておく。

おそらく、上のようなことは、全て実施されておられると思います。私の言いたいのは、（私は法律家ではありませんが）95%成功率とかで、賠償責任が決定するのではないと言うことです。「あの先生が最期を看取ってくれたから、○○は良かった。」となるのが、私は最高の医療だと思います。このような言葉は、医療技術より、医師の人間性がもたらすものと思います。

つい最近、研修会で某大学病院のリスク管理や医事紛争の担当をされている先生（臨床医）の講演を聞きました。

成功率９５％の治療を行って結果が悪かった場合について、「医療ではマクロで考えるが、法曹はミクロで考える」と言われたのが印象的でした。

つまり、「成功率が９５％しかないことを承知の上で治療を受け、たまたま５％にあたったのはやむを得ない」と医療側は考えるが、法曹は「９５％の高い成功率にもかかわらず結果が悪かったのは、どこかに過失があったはずであり、それを追求するのは当然である」と考えるそうです。

法曹の方のご意見を拝聴したいところです。

「医療ではマクロで考えるが、法曹はミクロで考える」

「成功率が９５％しかないことを承知の上で治療を受け、たまたま５％にあたったのはやむを得ない」と医療側は考えるが、法曹は「９５％の高い成功率にもかかわらず結果が悪かったのは、どこかに過失があったはずであり、それを追求するのは当然である」と考える

基本、傾向としては間違いないと思っています。
傾向として、ですよ。大事なことなので２回言いますが。

でも、この見方の違いは、非常に大きな溝を作っているように思えます。

i田舎医師 さんに対しては、

（No.18）どこまでなら大丈夫なのか数値でしっかり表していただければ

「というご要望にお答えするのは、司法には原理的に不可能」
と申し上げるしかないのです。

なぜなら、司法は、現実に起こった個々の事例（ミクロ）について、
「当時誰かがどうにかしていれば避けられた結果なのか、あるいは平均レベル（←これが曲者なのはさんざん語り尽くされていますが）の努力を尽くしていても不可避だったのか」
という観点でしか当否（過失の有無）を判断しない、判断できないからです。

> 「成功率が９５％しかないことを承知の上で治療を受け、
> たまたま５％にあたったのはやむを得ない」と医療側は
> 考えるが、法曹は「９５％の高い成功率にもかかわらず
> 結果が悪かったのは、どこかに過失があったはずであり、
> それを追求するのは当然である」

これは救急の場でも実感しています。昔だったら「命が助かればもうけもの」の重症外傷でも、最近は「なぜ助けられなかったか？」とか「命は助かったが、マヒが生じた。これは治療が不適切だったからではないか？」と言われる事が増えました。

私は、訴訟に至った経験はまだありませんが、救急治療の進歩が訴訟リスクを増加させ、若い医師の救急離れを招いていると断言できます。

某匿名サイトで「無医自然」という言葉を知り、なるほどと思いました。今以上の医療の介入（進歩）も考えものだなと悩んでいます。若い、これからと言う医師に救急をお勧めできないのが辛いところです。

ぐちってすみません。

５年前の強制わいせつ容疑で医師逮捕　警視庁、時効直前http://www.asahi.com/national/update/0507/TKY200905070058.html

ちょっと気になったので。

大腸内視鏡検査を数多くやると、ごく稀に、女性で前方のほうに入ってしまうという事故があります。[私は一万例以上してますが、あります。]見える風景が違うことでびっくりして気づいたのですが、事故として起こりうることです。

電車内の痴漢とは違いますが、思わぬ事故をわいせつ行為としてあげられてしまった可能性はないでしょうかね。

女性の検査、診察は特に気を使います。しかし、大腸内視鏡検査を行うときには看護師がいなくては、基本的にできようがないのですが、、、
乳房の検査などでも、よっぽどお年寄りでなければ、看護師がいない状況では絶対に検査は行わないようにしていますが、たまたま看護師が急に呼ばれて出て行ってしまった時には“バカやろーでてくな”と喚きますし、出ていかないように教育しています。

　間違うことがあるんですか？
　たしかに場所的には近いと思いますが、どういう場合にそういう間違いが生じるのでしょうか？
　素人常識的には考えにくいのですが。

ヤフーニュースのコメント欄には、医師・医療関係者と思しき投稿も散見されます。
http://headlines.yahoo.co.jp/cm/main?d=20090507-00000080-jij-soci&s=points&o=desc

ゼリー塗布によりよく滑る、間近で直視しての手技でない（こともある）、視認困難な場合もある（毛深さ、肥満等）などの要因から、誤挿入事故それ自体は数千件につき１件～数件程度起こっている（起こりうる）という印象を受けました。

同じくコメント欄では「エロ医師！」「いやクレーマー患者！」と両極端な決め付けが多い印象ですが、医療側・被医療側とも現段階では安易な決め付けは控えるべきでしょう。

少なくとも実名報道はすべきでない段階だと思います。
マスコミ社員の場合には匿名報道されている場合もあるようで、ダブスタとの批判もありうるところかと。

別エントリを立てました。
「手元が狂う状況について」

“ ＢＡＢＹ　ＨＡＬＬ基金（ 純・イチロー基金）” ＆ “ＨＡＰＰＹ　Ｘｍａｓ（ Ｗar Ｉs Ｏver ）”

ＴＡＸＰＡＹＥＲ　日本国民の安全存立の確保：日米同盟＆日朝ピョンヤン宣言

▲“ ＢＡＢＹ　ＨＡＬＬ基金（ 純・イチロー基金 ）” ＆ “ＨＡＰＰＹ　Ｘｍａｓ（ Ｗar Ｉs Ｏver ）”

・・・ジョージ・Ｗ・ブッシュのエイズ対策寄金？？？＆ Official Girl Friend “　Ｉ　ａｍ　ｓｏｒｒｙ　”

そし　・て・・・死の商人（八八八）と不治三軽〇百合子の婚活性治 「 One Piece 」 と 死！！！　 援企業（８８８）「寄金でリハビリ？？？」

▲対テロ戦争継続へ（△３８０）阻止（八）　　　　で　　　　ＷＯＮ　　Ｐｅａｃｅ　〇〇〇

▲　放射線被曝く１１０工作員呆治利犬テロネットワーク化（△１１１０）くく　医を量る医療×××　　　　　　で　　　　ＷＯＮ　　Ｐｅａｃｅ　◎◎◎

　オバマ大統領に捧げるメッセージ

▲ “ ＢＡＢＹ　ＨＡＬＬ基金（ 純・イチロー基金 ） ” ＆“ ＨＡＰＰＹ　Ｘｍａｓ（ Ｗar Ｉs Ｏver ）”

ーオバマ大統領から世界の医療機関へー

　基金を支援：各国の医療スタッフチーム

川崎医科大学内科（肝・胆・膵）　日野啓輔教授へのメッセージ

　＞ 今も垂水好青年に敬意を表します ＜

▲▲Ｗon Ｐeace 教育基金～（学校施設）寄附：Ｗhite Ｘmas “ I am sorry ”

　－１１０呆治利犬◎北朝鮮テロネットワーク化（△１１１０）阻止（ハ）－

＜＜協賛と指定＞＞△不治三軽とその子弟

　　　　　　　　　△１１０・税Ｒとその子弟

　　　　　　　　　△大マスコミ・ＮＨ軽とその子弟

　　　　　　　　　△電力会社とその子弟

　　　　　　　　　△他、小イ〇百合子の婚活死・　援企業（△８８８）とその子弟

　－世界の医療機関＆オバマ大統領＆小泉純一郎前首相に捧げるメッセージー

　　　核戦争なき世界の理想実現に向けての第一歩

　より信頼される医療、＆より良きリーダーの指導力を求めて

　　　　　　　　　　- belong to -

　
追伸　▲“ＢＡＢＹ　ＨＡＬＬ基金”＆“ＨＡＰＰＹ　Ｘｍａｓ（Ｗａｒ　ｉｓ　Ｏｖｅｒ）”

　　
　　現在ターゲットは医師久松篤子とその家族　やがて小泉純一郎前首相　　そし（ハ）・・・て・・

基金 ー 最 大 ー の功労者は～まっとうな～

〇 ～小池百合子（５７さい）～ と不治三軽 ～結０～ 暴力団（三）～　く　　 ～ジョージ・Ｗ・ブッシュと死の商人（中東テロリストネットワーク）～△１６４～ く　 ～ 〇〇さま？？？（△３５）　～ く ～１１０呆治利犬（△１１１～△１１１０）～

　　　　　　　－ホワイト　ハウスに捧げるメッセージー

　　　　　　核戦争なき世界の理想実現に向けての第一歩

　　　　　　　オバマ大統領からのメッセージ

　▲“ＢＡＢＹ　ＨＡＬＬ基金”＆“ＨＡＰＰＹ　Ｘｍａｓ（　Ｗａｒ　ｉｓ　Ｏｖｅｒ　）”（別名　バラク　オバマ基金）

　　　
　　　 バラク　オバマ基金　－支援者を公表ー

　　　　　　　　（匿名希望を除き）

　 支援者リスト　－“ クリスマスイブ にインターネット公開 ”ー

追伸　白　黒　ツ　　け　ル（日）　小池百合子 > 婚活死・援者リスト（△１６４－１）

　　　△（米）▲　グレーゾーン　Bush Doctor ライ・ン樹立（△？？？）

　１１０感染症（睡眠導入下で強制感染）と１・１０テロ ～回１１０と△１・１０～

〇小池百合子　～　ブッシュ〇ホワイト木金（ △ベビー呆ル木金 ）（ △！！！！ ）

回 ターゲット（＊）の惨殺 ・ 擬装失踪 ・ 擬装自殺 ・ 銃殺　そして転落死から事故死まで（ １・１０テロ ）と１１０感染症（ 回１１０ ）

　１・１０テロ＝△１６４－１＝△３３十△１０５十△２５

　　　　＜　小泉事務所と連携？？？？　＞

　～小池百合子～ 婚活死 ・ 援 の 首 謀 者 イサオ 三（ ３３ ）と不治三軽（ イイジマ 三（ ３３ ）＊日枝（１０５）＊１１０ウルマファミリー（ ２５ ））　～ 結 ０ ～　暴力団（ 三 ）

　◎死の商人（中東テロリストネットワーク）　～　北朝鮮裏工作テロまで

　〇小池百合子　～　ブッシュ〇ホワイト木金（別名ベビー呆ル木金）（△！！！！）

テロ死・援　　　　で　　死・援者は　ミリオネラー？？？？（　～ちなみに現警察庁長官（２５）～　）

追伸　－　太田由芽子先生へのメッセージ　－

　２０１０年クリスマスまでに連絡なければ　ー回１１０（＊）　～　△１・１０実行済み　－

（　～ち・なみに～長崎県警（△１７）～警視庁（１７）～△２５～大阪府警（７０）～他は？　）

　～ １１０円罪 とファミリー（８８）◎ ～ １１０・フジ・三〇 ～さま？？？

〇さくらファミリー（△１１０）～ＮＨＫ（３）～マンカイ＝回（（１１０－１０）×（１１０－１０））

　　◎警視庁立川署・・・2007年　合鍵を無断入手し、ストーカー被害者を見下ろし射殺

　　◎熱田署・・・2008年　灯油をかぶった市民が、取調べ室内で全身熱傷

　　　　　　で　　次は・・・

　～ち・なみに～（ △１・１０画策中の ）△１１０　＞ ～△１７～警視庁（１７）～大阪府警（７０）～△２５～

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