• The Korean Society of Law and Medicine
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• v.18 no.1
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• pp.3-35
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• 2017

The Supreme Court of Korea first admitted compensation for damages caused by breach of informed consent in 1979. From then on, specific details of informed consent are shaping up and developing through court precedents. The duty of informed consent of doctor is based on article 10 of the Constitution and medical contract, and is expressly prescribed Article 12 of Framework Act on Health and Medical Services and other acts and regulations. By the way, the regulations about duty of informed consent of doctor have been established in Medical Law revised on December 20, 2016, and the revised Medical Law will be implemented on June 21, 2017. According to the revised Medical Law, medical practices subject to description and consent are operation, blood transfusion and general anesthesia that threaten to cause serious harm to human life or to the body. When performing these medical activities, the written consent must be explained and agreed upon in advance. If a doctor violates the law, he will incur fines of less than 3 million won. Comparing and viewing the revised Medical Law and existing legal principles about the duty of informed consent, we can confirm that there is a substantial difference between the two parties. Accordingly, despite the implementation of the revised medical law, the existing legal principles are unlikely to be affected. However, from the perspective of legal uniformity and stability, it is undesirable that legal judgments on the same issues differ from each other. The revised Medical Law about informed consent needs to be reformed according to existing legal principles. And, as in the case of Germany, it is desirable to include the matters concerning informed consent in the civil code.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.3-46
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• 2017

Physician's Duty of Information is classified into three categories by legal function: 'Duty of Information to Report' to fulfill the patient's right to know; 'Duty of Information to Guide' patient's convalescing and staying healthy; 'Duty of Information to Contribute' to patient's self-determination. We classify the physician's duty of information because the legal effect from the breach of duty varies accordingly. The legal effect is focused on damage compensation responsibility for breach of duty. When a physician violates 'Duty of Information to Report', he subjects himself to liability of compensation for infringing on the patient's 'Right to Know'. When a physician violates 'Duty of Information to Guide', she subjects herself to liability for general medical malpractice. Finally, when a physician violates 'Duty of Information to Contribute', the physician is basically liable for violation of the patient's 'Right to Self- Determination' which refers to infringement on freedom of choice. However, in the case of situation that patient's refusal to the medical treatment would be presumed, the physician bears all liability for the patient's damage which includes both of property and mental damage.

• 건강소식
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• v.16 no.7 s.164
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• pp.38-41
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• 1992

때때로 발생하는 의료사고와 관련하여 의사가 환자에게 치료 전 사고의 위험성을 설명했느냐의 문제에 대해, 그리고 그 "설명"이 의사의 법적의무인가에 대해 알아본다.

• The Korean Society of Law and Medicine
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• v.21 no.2
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• pp.37-73
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• 2020

Medical practice with medical adaptability is not illegal. Consent to medical practice is also not intended to exclude causes of Illegality. The patient's consent to medical practice is the exercise of the right to self-determination, and the patient's right to self-determination is take shape through the doctor's information. If a doctor violates his duty to inform, failure to inform or lack of inform constitutes an act of illegality of omission in itself. As a result, the legal interest of self-determination is violated. The patient has the right to know and make decisions on his or her own, even when it is not connected to the benefit of life and body as the subject of the body. If that infringed and lost, the non-property damage shall be recognized and the immaterial damage must be compensated. On the other hand, the violation of the duty of information does not belong to deny the compensation for physical damage. Which the legal interest violated by violation of the obligation to inform is the self-determination, and loss of opportunity of choice is recognized as ordinary damage. However, if the opportunity of choice was lost because of the infringement of the right to self-determination and the patient could not choice the better way, that dose not occur plainly bad results, under the prove of these causal relationship, that bad results could be compensated. But the unexpectable damage could not be compensated, because the physical damage is considered as the special damage due to the violation of the right of the self-determination.

• The Korean Society of Law and Medicine
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• v.19 no.2
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• pp.235-261
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• 2018

The Medical law stipulates regulations about the physician's duty to inform to contribute to patient's self-determination. This law was most recently revised on December 20, 2016, and came into effect on June 21, 2017. There has been much controversy about this, and it has been questioned whether or not it will be effective for physicians to comply with the duty to inform. Therefore, this study investigated perceptions of physicians of whether they observed the duty to inform and their legal judgment about that duty, and analyzed how the revision of the medical law may have affected the legal cognition of physician's duty to inform. This study was conducted through an online questionnaire survey involving 109 physicians over 2 weeks from March 29 to April 12, 2018, and 108 of the collected data were used for analysis. The questionnaire was developed by revising and supplementing the previous research (Lee, 2004). It consisted of 41 items, including 26 items related to the experience of and legal judgment about the duty to inform, 6 items related to awareness of revised medical law, and 9 items on general characteristics. The data were analyzed using SAS 9.4 program and descriptive statistics, Chi-square test, Fisher's exact test and Binary logistic regression were performed. The results are as follows. • Out of eight situations, the median number of situations that did not fulfill the duty to inform was 5 (IQR, 4-6). In addition, 12 respondents (11%) answered that they did not fulfill the duty to inform in all eight cases, while only one (1%) responded that he/she performed explanation obligations in all cases. • The median number of the legal judgment score on the duty to inform was 8 out of 13 (IQR, 7-9), and the scores ranged from a minimum of 4 (4 respondents) to a maximum of 11 (3 respondents). • More than half of the respondents (n=26, 52%) were unaware of the revision of the medical law, 27 (25%) were aware of the fact that the medical law had been revised, 20(18%) had a rough knowledge of the contents of the law, and only 5(5%) said they knew the contents of the law in detail. The level of awareness of the revised medical law was statistically significant difference according to respondents' sex (p<.49), age (p<.0001), career (p<.0001), working type (p<.024), and department (p<.049). • There was no statistically significant relationship between the level of awareness of the revised medical law and the level of legal judgment on the duty to inform. These results suggest that efforts to improve the implementation and cognition of physician's duty to inform are needed, and it is difficult to expect a direct positive effect from the legal regulations per se. Considering the distinct characteristics of medical institutions and hierarchical organizational culture of physicians, it is necessary to develop a credible guideline on the duty to inform within the medical system, and to strengthen the education of physicians about their duty to inform and its purpose.

• The Korean Society of Law and Medicine
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• v.21 no.1
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• pp.3-32
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• 2020

Under the Korean case law, physicians are obliged to disclose or inform the risk associated with a specific treatment to their patients before they perform the treatment. If they fail to do this, they are liable to compensate pain and sufferings. If the patient can establish that he or she would not have consented at all to the treatment had he or she been informed, the physicians are liable to compensate all the loss incurred by the treatment. In this article, the author examines the legitimacy of this case law from the perspective of legal doctrine as well as its practical affect on the medical practice and the furtherance of self-determination of the patient. The fundamental findings are as follows: The case law that has physicians who failed to inform treatment risk compensate pain and sufferings for the infringement of the right of self-determination seems to be a disguised and reduced compensation of all the loss based on the possible malpractice, which cannot be justified in view of the general principles of tort liability. It is necessary to adhere to the requirements of causation and imputation between the failure to inform treatment risk and the specific patient's consent to the treatment. If this causation and imputation is established, all the loss should be compensated. Otherwise, there shall be no liability. The so-called hypothetical consent defence shall be regarded as a part of causation between the failure to inform and the consent. The suggested approach can preserve the essence of physician-patient relationship and fit for the very logic of informed consent better.

• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.145-173
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• 2016

A patient's Right to Self-Determination or his/her Right of Autonomy in the Republic of Korea has traditionally been understood as being composed of two elements. The first, is the patient's Right to Know as it pertains to the physician's Duty to Report [the Medical Situation] to the patient; the second, is the patient's Right to Consent and Right of Refusal as it pertains to the physician's Duty to Inform [for Patient's Consent]. The legal and ethical positions pertaining to the patient's autonomous decision, particularly those in the interest of the patient's not wanting to know about his/her own body or medical condition, were therefore acknowledged as passively expressed entities borne from the patient's forfeiture of the Right to Know and Right to Consent, and exempting the physician from the Duty to Inform. The potential risk of adverse effects rising as a result of applying the Informed Consent Dogma to situations described above were only passively recognized, seen merely as a preclusion of the Informed Consent Dogma or a denial of liability on part of the physician. In short, the legal measures that guarantee a patient's 'Wish for Ignorance' are not currently being understood and acknowledged under the active positions of the patient's 'Right Not to Know' and the physician's 'Duty to Consideration' (such as the duty not to inform). Practical and theoretical issues arise absent the recognition of these active positions of the involved parties. The question of normative evaluation of cases where a sizable amount of harm has come up on the patient as a result of the physician explaining to or informing the patient of his/her medical condition despite the patient previously waiving the Right to Consent or exempting the physician from the Duty to Inform, is one that is yet to be addressed; that of ascertaining direct evidence/legal basis that can cement legality to situations where the physician foregoes the informing process under consideration that doing so may cause harm to the patient, is another. Therefore it is the position of this paper that the Right [Not to Know] and the Duty [to Consideration] play critical roles both in meeting the legal normative requirements pertaining to the enrichment of the patient's Right to Self-Determination and the prevention of adverse effects as it pertains to the provision of [unwanted] medical information.

• The Korean Society of Law and Medicine
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• v.4 no.2
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• pp.225-248
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• 2003

• The Korean Society of Law and Medicine
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• v.21 no.2
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• pp.163-207
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• 2020

Korea has been positioned as the leading country in the industry of clinical trials as the clinical trail of Korea has developed for the recent 10 years. Clinical trial has plays a significant role in the development of medicine and the increase of curability. However, it has inevitable risk as the purpose of the clinical trial is to prove the safety and effectiveness of new drugs. Therefore, the clinical trial should be controlled properly to protect the health of the subjects of clinical trial and to ensure that they exercise a right of self-determination. In this context, the fiduciary duties of doctors who conduct clinical trials is especially important. The Pharmaceutical Affairs Act and the relevant regulations define several duties of doctors who conduct clinical trials. In particular, the duty to protection of subjects and the duty to provide information constitute the main fiduciary duties to the subjects. Those are essentially similar to the fiduciary duties of doctors in usual treatment from the perspective of the values promoted by the law and the content of the law. Nonetheless, clinical trials put more emphasis on the duties to provide explanation than in usual treatment. Further research and study are required to establish the concrete standard for the duty of care. However, if the blind pursuit of higher standards for the duty of care or to pass the burden of proof to doctors may result in disrupting the development of clinical trials, limiting the accessibility of patients to new treatment and even violating the principle of sharing damage equally and properly. In addition to these duties, the laws of clinical trials define several duties of doctors. Any decision on whether the violation of the law constitutes the violation of the fiduciary duty and justifies the demand for compensation of damages should be based on whether relevant law aims to protect the safety and benefit of subjects, even if in an incidental way, the degree to which such violation breaches the values promoted by the law and the concrete of violation of benefit of law, the detailed acts of such violation. The legal interests of the subjects can be protected effectively by guaranteeing compliance with those duties and establishing judicial and administrative controls to ensure that the benefit of subjects are protected properly in individual cases.

• 방재와보험
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• s.148
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• pp.44-51
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• 2013

대리운전업체에 소속되어 있는 대리운전자가 대리운전 보험에 가입한 경우, 보험료는 대리운전자가 직접 부담하는 경우가 대부분이나 계약당사자인 보험계약자는 대부분 대리운전업체로 되어 있다 보니 약관내용에 대해 제대로 설명을 듣지 못했다는 이유로 보상범위 등을 둘러싼 분쟁이 발생하는 경우가 많다. 본고에서는 차주가 동승하지 않은 채 대리운전자가 차량을 운전하던 중 발생한 사고를 대리운전보험에서 담보하는 '대리운전 중 사고'로 볼 수 있는지 여부를 다룬 사건을 소개하고자 하는데, 쟁점 가운데 약관의 설명의무와 관련 사항을 일부 언급하고 있어 동 내용을 살펴보고 나아가 약관 설명의무의 법적 성격 및 유사 분쟁사례 등을 개관하고자 한다.