• The Korean Society of Law and Medicine
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• v.22 no.2
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• pp.111-138
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• 2021

'Unlicensed medical practice by a non-medical practitioner' often represented by surrogate surgery or so-called 'ghost surgery,' causes irreparable damage to life or body, and therefore calls for very strict and effective controls. The 'bill on installment of CCTVs in an operating room' to prevent unlicensed surrogate surgery has been discussed for a long time, but due to numerous issues and heated confrontations, it has been pending in the National Assembly. Nevertheless, it is expected that the bill will be discussed again in earnest in the National Assembly because surrogate surgery and factory-type cosmetic surgery, which has been performed mainly in the field of cosmetic surgery, has also been occurring in the field of therapeutic surgery. In general, an operating room is considered as being locked or closed, as well as disallowing implicit complicity among insiders. Hence, if the insiders conspire to commit or cover up an illegal act, or if a surgeon performs rapid cosmetic surgery and then leaves the recipient (or medical institution) so as to perform more operations for profit - even if it is legitimate practice - it may result in serious consequences in terms of the recovery of a patient. In this case, installation of CCTVs can be of great help in identifying an illegal act and assessing any occurrence of negligence. On the other hand, while the fundamental purpose of therapeutic surgery is to restore a patient's life or body - that is, lifesaving - installation of CCTVs may base the relationship between a surgeon and a patient on distrust and surveillance, so it may increase the number of requests for CCTV footage or lead to more disputes, as well as placing a burden on the surgeon when best results are not achieved for a patient. As a result, the surgeon may choose non-invasive treatment contrary to conscience instead of risky but necessary surgery, or he/she may have significant difficulty in determining the timing of surgery, which may limit the provision of effective surgical medical care. Then, in terms of the relationship between a surgeon and patient, and in the long run, there could be significant disadvantages for the public and patients if CCTV footage is allowed. In this paper, we review domestic and overseas cases and issues regarding installation of CCTVs in an operating room, and present various viewpoints and suggestions to promote legislation with minimized legal problems and side effects, thereby contributing to protection of the lives and health of the public, patients, and recipients of surgery.

• The Korean Society of Law and Medicine
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• v.22 no.2
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• pp.49-79
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• 2021

Due to defendant's wrongful act by implant surgery, plaintiff has been suffered serious damages to his face and teeth, and pain caused by establishing implanted teeth. Jeonju Appellate Court sentenced to pay future medical expenses and alimony to the plaintiff in compensation for breach of duty or torts. The ruling is designed to relieve the burden of proof because it is extremely difficult for non-experts to determine whether dentists violated their 'duty of care' or whether there was a causal relationship between damages to medial treatment. It was judged that if symptoms that contributed to the patient's significant outcome occurred during or after surgery, such symptoms could be presumed to have been caused by medical negligence if indirect facts were proven to be other than medical negligence. Originally, the shifting of burden of proof in Germany, has already been developed in medical malpractice case since 1940s. In order to guarantee the patients' right, §630h German Civil Code (BGB) - presumption of negligence in the realization of controllable risk- has been also legislated. BGH (Bundesgerichtshof) has been interested in ensuring that the principle of equality between patients and doctors. So, in this study, we wanted to refer to German precedent cases to analyzing Korean medical malpractice lawsuit. In particular, the decision could be significant in that it approaches closer to allows the shifting burden of proof in drastically growing dental malpractice cases. This is clearly confirmed in the judgment of the dentist's "fault" that "if indirect facts about the symptom or occurrence are proven to be cause other than medical negligence, such symptoms can be presumed to be due to medical negligence."

• Journal of Science and Technology Studies
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• v.14 no.1
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• pp.87-116
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• 2014

This article focuses on synthetic hormone consumption that illegal act of heterogeneous forms of pharmaceuticalization. Athletes are not unfamiliar with the use of synthetic hormones that contain anabolic steroids. Synthetic hormones are used to increase muscle mass and strength. This drug use practice cannot simply be viewed as illegal. Athletes accumulate knowledge on these hormones that conflicts with the knowledge proffered by physicians and they consume drugs responsibly. Physicians' knowledge of these hormones is limited to their use in the treatment of abnormalities. Athletes, however, are expanding the role of these hormones to include their potential for enhancement. Thereby, a new value is assigned to synthetic hormones, and an informal market is formed. Previous studies in the fields of biopolitics and biomedicalization have mainly focused on the formal connection between biomedical science and the institutional network. This article, therefore, analyzes the informal and the various aspects of biomedicalization.

• Journal of Haehwa Medicine
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• v.19 no.1
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• pp.111-118
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• 2010

Objective: The purpose of this study is to show A case of patient with myositis caused by illegal practice. Methods: The authors observed patient by VAS and measured sizes of Lt. thigh and Lt. calf for operated acupuncture treatment, herbal medicine treatment, physiotherapy and western medication. Result: After treatment, pain and swelling got better and also on the ultrasonography and cbc indicates that it has been improved Conclusion: These days, The illegal procedures are done broadly which might have possibilities of medical accidents. To prevent the accidents, we need to stop this illegal procedures to protect the health of population.

• Journal of Convergence for Information Technology
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• v.10 no.2
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• pp.201-210
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• 2020

This study aims to identify existing legal limitations on tattooing for beauty purposes and to suggest legalization of tattooing for beautician and necessity of institutionalization for the professional qualification system. The results of depth interviews from 10 experts in the field of beauty and law and survey from 101 respondents who experienced with tattooing are as follows. First, 10 experts pointed out that the law does not reflect reality considering the fact that a number of procedures are made illegal, and suggested opinions of the introduction of the professional qualification system. Second, only 15.7 percent of procedures had been conducted by a doctor, and non-medical practitioners showed higher quality of procedure, satisfaction, and recommendation. Side effects do not differ between groups, and 73.7% of the respondents answered that the qualification system is necessary. This study empirically supports the need for improvement in government policies that reflect social awareness of tattooing for beauty purposes.

• The Korean Society of Law and Medicine
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• v.16 no.1
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• pp.155-190
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• 2015

The court sentenced meaningful decisions related to the medical service in 2014. The court assumed the negligence of medical staff in the accident if being broken while using the medical equipment for not an original purpose at the time of surgery and ruled that the compensation for damage can be recognized in recognition of the causal relationship between the explanation duty violation and side effect's happening when unproven surgery on safety is implemented regarding the duty of explanation, that in the case of cosmetic surgery, the subject on the duty of explanation needs to be expanded compared to the general medical practice and that the duty of explanation cannot be accepted for the range that cannot be expectable. Also, the court has provided the requirement and limitation of self-determination exercise in case of the crash between patient's self-determination and doctor's duty of care and has ruled that as automobile insurance contract is a contract with the insurance company to pay regarding liability for car accidents, treating patients and taking the insurance money is not illegal activity even for the unlicensed hospital violating the medical law while established. The judgment stating the opinion that medical practitioners cannot be punished according to the medical law prohibiting the receiving of rebate in case that medical practitioners did not receive benefit while the medical institution itself gained an unfair economic benefit also stands out. And the court has ruled that even if the medical institution who received a business suspension is closed, the suspension is still effective in case that the same operator opens a new medical institution in the same place, ruled on the requirement to conduct a medical service outside of the medical institution that the doctor opened and ruled that the administrative penalty cannot be conducted prior to the conviction on charge of violating the medical law.

• The Korean Society of Law and Medicine
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• v.14 no.2
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• pp.217-260
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• 2013

In connection to the civil liability of the medical malpractice, plaintiff and courts are solving the medical disputes with theory of the liability based on tort law. because contract law does not enact the right of claim of solatium and a plaintiff's lawyer and courts hesitate to use contract law. Medical treatment of doctor is main debt in medical contract and its in-complete performance gives rise to the violations of human's life, body and health. Consequently a breach of medical contract leads to violations of person-al rights. These violations spring from liability of contract as well as tort and damages from them are recognized based on medical contract law. A duty of explanation of doctor is a independent and appendant debt to the treatment debt. However its breach provokes violations of human's life, body and health as well as a right self-determination. Therefore consolation money claim should be recognized. In case of the violation of patient's life, body and health, patient's family al-so can demand consolation money due to the violation of their's own mental pain. However in case of the violation of only patient's self-determination without informed concent, they can not demand it by reason of the violation of patient's self-determination. But by reason of the violation of patient's life, body and health that were recognized by proximate causal relation between violation of duty of explanation and abd execution, they can do.

• The Korean Society of Law and Medicine
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• v.22 no.4
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• pp.185-210
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• 2021

On September 24, 2021, the new provisions(Article 38-2 of the Medical Service Act) mandatory CCTV installation in operating rooms where the unconscious patient is operating such as general anesthesia. The revised medical law aims to effectively prevent illegal activities that may occur in the operating rooms and to promote appropriate resolution to medical dispute. According to the law, medical institutions operating unconscious patients, such as general anesthesia, must install CCTVs in the operating rooms by September 25, 2023, and film surgical scenes only at the request of patients and their guardians, regardless of the consent of the medical personnel. The bill delegated the legislative device to minimize infringement of fundamental rights to subordinate statutes without stipulating it in the law.(Article 38-2(10)) The most realistic policy plan to minimize the infringement of the fundamental rights of patients is to prepare specific regulations. Therefore, this study examines the legislative background and main contents of the amended CCTV installation bill, and suggests issues to be reviewed when preparing subordinate statutes by analyzing major issues. It was reviewed based on compliance with the principle of minimizing infringement of fundamental rights of information subjects in the operating rooms. The information subjects of CCTV are health professionals and patients. Suggesting issues should be considered when preparing subordinate statutes so that the purpose of the CCTV installation law can be achieved while minimizing infringement of right of self-determination of personal information, personality rights, and human rights. It is hoped that this paper will be referred when discussing subordinate statutes and regulations to contribute minimizing infringement of fundamental rights.

• Journal of radiological science and technology
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• v.30 no.2
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• pp.89-93
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• 2007

Contrast medium is a very useful tool for X-ray examinations. But contrast medium has some unavoidable adverse reactions. For those patients who have never received contrast medium before, it is impossible to predict whether they will suffer from certain kinds of adverse reactions. Thus, radiologists should use strategies to minimize adverse events and be prepared to promptly recognize and manage any reactions to the contrast media. If a radiologist commits medical malpractice, he will face civil responsibility. Medical malpractice means a tort or breach of contract that occurs in a medical setting. Medical malpractices happen, despite the efforts of hospital staff. Many courts have applied the traditional doctrine of respondeat superior in actions against organizations for injuries caused by their employees. It is a legal doctrine, which states that an employer is responsible for employee actions performed within the course of the employment. A hospital is an organization for health purposes. An organization may be convicted of an offense committed by an employee of the organization acting in its behalf and within the scope of his office or employment. Organizational liability involves a wide variety of legal issues, including tort liability, wrongful employment practices, personal injury, breach of fiduciary duty, and so on. Many executive directors of organizations are aware of their personal and organizational risks of exposure to legal liabilities. The employer must have the right to control the physical conduct of the employee and must consent to receive the employee's services, while expecting some benefits from the services offered. Therefore, legal liability can be imposed for improper selection, assignment, training, and supervision of employees. In conclusion, the hospital itself has organizational liability for adverse reactions to the contrast medium.

• The Korean Society of Law and Medicine
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• v.10 no.2
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• pp.85-113
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• 2009

In this paper, the Judgment 2007DA76290 of the Korean Supreme Court was analysed in two points of the legal theory and litigation. The judgment arouses some issues of medical malpractice liability. They includes the concept of the complications and permanent lesion and the difference between them, some problems in a judge's applying the requirements for the physician's tort liability to the medical malpractice situations, the theory of obligation de moyens related with the burden of proof of the negligent conduct for a physician's liability for misperformance of contract, the influence of a patient's physical conditions on the physician's liability, the breach of duty to disclose in selecting the safer one of the treatment methods bringing about the complications or leaving the permanent lesion and so on. In the situations of the case referred to above, the plaintiff should have tried to establish that a reasonable physician in the specific situation of the case would have substituted the safer method of treatment for the method in the case. If the plaintiff had succeeded in establishing it, he or she could have recovered even the physical harm resulting from the permanent lesion brought about by the complications of the specific treatment in the case. The plaintiff failed to do so and recovered only the emotional distress which the patient suffered owing to the physician's breach of the duty to disclose. Therefore the legal malpractice of the counsel might be found in this case.