2009 年 27 巻 p. 60-68
We usually recognize instinctively that it is unreasonable to be blamed for something beyond our control or expectations, and that we should be morally evaluated in terms of motives or intensions, which are insusceptible to luck. On the other hand, however, we admit in many cases that luck exerts some influence on agents' moral evaluations. This inconsistency has long been discussed as the problem of 'moral luck'. This paper shows that the same inconsistency can be found in our attitude toward medical malpractice, and considers how to deal with it. According to D. Dickenson, who introduced the concept of moral luck into discussions of medical ethics, bad luck in medical accidents means doctors' misfortune of being blamed for inevitable accidents that occur beyond their control. Medical malpractice, which is caused by negligence and therefore can be prevented, is thus excluded from her consideration. Contrary to this, this paper argues that even regarding cases of negligence, if there are structural, technical factors that can induce such negligence, anybody could make medical errors, and it is in this sense that there exists moral luck in the cases of malpractice. This consideration leads us to the following conclusions; (1) even in the cases of negligence, it may be unreasonable to inflict criminal punishment on doctors, for we cannot clearly distinguish according to criminal law between cases of vicious negligence and those of mere moral luck; (2) a criminal suit is not a proper means to investigate what really occurs in medical malpractice.