• The Korean Society of Law and Medicine
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• v.19 no.1
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• pp.207-254
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• 2018

The major court rulings delivered in 2017 include the ruling that separated the legal character of denture production agreement signed together with medical care agreement and found a subcontracting dimension in the former, and the ruling that overcame the limitations of the theory of entire appearance of a fetus as discussed in civil law by using the legal principle of insurance which suggests that unborn child insurance takes effect after the contract is signed and the first installment of the premium is paid in. As more court rulings find the medical specialists responsible for accidents and injuries from drugs, some argue that medication counseling by the druggist who makes and dispenses drugs should be upgraded. And with respect to a court ruling that denied the hospital's responsibility for an infection-involving accident even if there were no records on specific measures taken in infection management, some criticized the court for being too conservative in recognizing responsibilities. And with respect to infectious disease management, some criticized the court for its interpretation and application of the facts in the direction of denying the negligence. In addition, some claimed that it is necessary to establish institutional system for hospital infection control and its aid for victims, and to improve the system including the reversal of the burden of proof given the special nature of hospital infections. A number of rulings on the duty to disclose included the one which stated that the specific matter did not require a doctor's explanation as it was explained or the specific medical service would have been performed even if no explanation had been given. There was a greatly controversial ruling over the scope of indemnification, which accepted the occurrence of multiple scars and deformation as disorders while regarding breast as a thoracic organ. And a Supreme Court ruling over interpreting Medical Service Act was criticized as overstepping the boundary allowed in the law.

• The Korean Society of Law and Medicine
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• v.21 no.1
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• pp.69-105
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• 2020

In the health care system, medical fee payment is a very important and basic factor. The National Health Insurance Act adopted a contract system, and the content of the contract is to be determined the unit price per relative value scale. Accordingly, in the National Health Insurance system, the costs of health care benefits are adjusted each year according to inflation or changes in economic conditions. On the other hand, in the Medical Care Assistance system, the Medical Care Assistance Act does not prescribe the method of determining the medical payment, and all matters are delegated to the Minister of Health and Welfare. Accordingly, the Minister has adopted a fixed-payment system for hemodialysis treatment since 2001. A constitutional petition was filed in 2017 against this fixed-payment system, and the Constitutional Court rejected the petition in 2020. In this study, we examine the meaning and content of the medical fee payment system, focusing on the above constitutional petition case, and present three principles as constitutional limits on the system. The first of its principles is the principle of legality, the second is the principle of prohibition of comprehensive delegation, and the third is the principle of proportionality. From that point of view, There are many unconstitutional elements in the fixed-payment system on hemodialysis.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.139-161
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• 2017

In this paper, The Supreme Court of Korea 2016. 1. 28. 2015Da9769 was reviewed. In the previous case, Korean Supreme Court 2009Da17417 for the element to requirement for permission of the withdrawal of life-sustaining treatments, the patient's consent for withdrawal of life-sustaining treatments was assumed a declaration of intention to terminate the contract. But the consent for withdrawal of life-sustaining treatments corresponds not to those. The consent for medical treatments is not the juristic acts but the real acts. If the presumptive intention about these withdrawal regards as the termination of medical contract, the contract must be up to the starting the civil proceedings. According to this case, although the partial cancellation of medical contract is admitted, on the other hand medical expenses obligation ist exempted only after the final decision. At the withdrawal of life-sustaining treatments the medical obligation ist exempted because of the inability to providing the medical payment, which confirmed by the final decision about the withdrawal of life-sustaining treatments. Therefore the judgement of this case ist appropriate in that sense, the medical obligation ist waived only after the final decision. However that legal basis lies not at the partial cancel but at the partial inability.

• The Korean Society of Law and Medicine
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• v.15 no.2
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• pp.165-194
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• 2014

Der Vertrag zwischen dem Arzt und seinem Patienten wird als Auftrag im Sinne des ${\S}680$ KBGB qualifiziert. Dem Arzt erwachsen innerhalb dieses Behandlungsvertrages zahlreiche Pflichten, von denen ein gro${\ss}$er Teil durch Richterrecht geschaffen wurde. Den Arzt treffen z.B. Behandlungspflicht, Informationspflicht ${\ddot{u}}$ber die Behandlung, Aufkl${\ddot{a}}$rungspflicht ${\ddot{u}}$ber einwilligungspflichtige Umst$\ddot{a}$nde, Dokumentationspflicht, Schweigepflicht. Der Arzt ist nach Rechtsprechung und Literatur verpflichtet, den Patienten ${\ddot{u}}$ber s${\ddot{a}}$mtliche f${\ddot{u}}$r die Einwilligung wesentlichen Umst${\ddot{a}}$nde aufzukl${\ddot{a}}$ren, insbesondere ${\ddot{u}}$ber Art, Umfang, Durchf${\ddot{u}}$hrung, zu erwartende Folgen und spezifische Risiken der Ma${\ss}$nahme, die Notwendigkeit, Dringlichkeit und Eignung der Ma${\ss}$nahme zur Diagnose oder zur Therapie und uber die Erfolgsaussichten der Ma${\ss}$nahme im Hinblick auf die Diagnose oder Therapie. Mu${\ss}$ der Arzt den Patienten auf einen eigenen Behandlungsfehler hinweisen, wenn f$\ddot{u}$r ihnen Umst${\ddot{a}}$nde erkennbar sind, die die Annahme eines Behandlungsfehlers begr${\ddot{u}}$nden. Allgemeine Offenbarungspflichr bei ${\ddot{a}}$rztlichen Behandlungsfehlern wird bisher nicht diskutiert. Nach derzietigem Recht besteht keine allgemeine Offenbarungspflicht des Arztes, den Patienten unaufgefordert ${\ddot{u}}$ber einen eigenen Behandlungsfehler hinzuweisen. Aber wie im ${\S}630c$ BGB, sind f${\ddot{u}}$r den Behandelnden Umst${\ddot{a}}$nde erkennbar, die die Annahme eines Behandlungsfehlers begr${\ddot{u}}$nden, hat er den Patienten ${\ddot{u}}$ber diese auf Nachfrage oder zur Abwendung gesundheitlicher Gefahren zu informieren.

• 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.17 no.1
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• pp.299-346
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• 2016

There were also various decisions made in medical area in 2015. In the case that an inmate in a sanatorium was injured due to the reason which can be attributable to the sanatorium and the social welfare foundation that operates the sanatorium request treatment of the patient, the court set the standard of fixation of a party in medical contract. In the case that the family of the patient who was declared brain dead required withdrawal of meaningless life sustaining treatment but the hospital rejected and continued the treatment, the court made a decision regarding chargeable fee for such treatment. When it comes to the eye brightening operation which received measure of suspension from the Ministry of Health and Welfare for the first time in February, 2011, because of uncertainty of its safety, the court did not accept the illegality of such operation itself, however, ordered compensation of the whole damage based on the violation of liability for explanation, which is the omission of explanation about the fact that the cost-effectiveness is not sure as it is still in clinical test stage. There were numerous cases that courts actively acknowledged malpractices; in the cases of paresis syndrome after back surgery, quite a few malpractices during the surgery were acknowledged by the court and in the case of nosocomial infection, hospital's negligence to cause such nosocomial infection was acknowledged by the court. There was a decision which acknowledged malpractice by distinguishing the duty of installation of emergency equipment according to the Emergency Medical Service Act and duty of emergency measure in emergency situations, and a decision which acknowledged negligence of a hospital if the hospital did not take appropriate measures, although it was a very rare disease. In connection with the scope of compensation for damage, there were decisions which comply with substantive truth such as; a court applied different labor ability loss rate as the labor ability loss rate decreased after result of reappraisal of physical ability in appeal compared to the one in the first trial, and a court acknowledged lower labor ability loss rate than the result of appraisal of physical ability considering the condition of a patient, etc. In the event of any damage caused by malpractice, in regard to whether there is a limitation on liability in fee charge after such medical malpractice, the court rejected the hospital's claim for setoff saying that if the hospital only continued treatments to cure the patient or prevent aggravation of disease, the hospital cannot charge Medical bills to the patient. In regard to the provision of the Medical Law that prohibit medical advertisement which was not reviewed preliminarily and punish the violation of such, a decision of unconstitutionality was made as it is a precensorship by an administrative agency as the deliberative bodies such as Korean Medical Association, etc. cannot be denied to be considered as administrative bodies. When it comes to the issue whether PRP treatment, which is commonly performed clinically, should be considered as legally determined uninsured treatment, the court made it clear that legally determined uninsured treatment should not be decided by theoretical possibility or actual implementation but should be acknowledged its medical safety and effectiveness and included in medical care or legally determined uninsured treatment. Moreover, court acknowledged the illegality of investigation method or process in the administrative litigation regarding evaluation of suitability of sanatorium, however, denied the compensation liability or restitution of unjust enrichment of the Health Insurance Review & Assessment Service and the National Health Insurance Corporation as the evaluation agents did not cause such violation intentionally or negligently. We hope there will be more decisions which are closer to substantive truth through clear legal principles in respect of variously arisen issues in the future.

• Journal of the Korea Academia-Industrial cooperation Society
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• v.12 no.1
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• pp.125-137
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• 2011

This study aims to know whether the Accreditation of Hospitals can help to improve productivity of hospital and affect the conversion factor. Based on the Malmquist productivity Index, the productivity of accredited hospital improves. There exists an tendency that as the scores of Accreditation rises, productivity increases. Also the higher the productivity, the lower the conversion factors in the rigid statistical evidence. This evidence is independent of hospital classification, geographical distribution, grouping. This evidence supports the productivity index can be included in the fee negotiations. It also means that rather than static efficiency, the multi-year change of productivity information can be usefully combined to set a conversion factor in Korean National Insurance Contract especially in the discussion of the structural change of payment system.

• 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.

• The Korean Society of Law and Medicine
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• v.20 no.1
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• pp.133-162
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• 2019

Due to the nature of medical malpractice lawsuits, it is difficult for medical consumers, who are weak in getting information when it comes to health care problem, to secure all information inside the hospital. Even if you are confident about the hospital infection, it is true that people have difficult to obtain medical testimony by expert. It is seen as no easy task to testify to the malpractice of colleagues who work in the same field not only in our country but also abroad, when a doctor gives negative testimony to another doctor in a medical malpractice lawsuit. Although few health care providers will be motivated to take medical care from the outset, testimony or statements from a medical practitioner can have a significant impact on the outcome of a lawsuit, as it is impossible for the patient to control or be aware of the whole process of medical conduct, especially in the event of a hospital infection and the victim. If the hospital can prove the causality of damages caused by negligence of the employees or supervision of the hospital itself in a medical suit caused by the infection, the level of protection of the victim could be raised further. We sought to find a solution to these problems by looking at the provisions of other laws related to hospital infection. In particular, as the comparative legal review regarding hospital infection, Germany's legislative precedent sets a medical contract as a typical civil law contract, so it is thought that looking at German civil law regulations also has implications for Korean law. We also tried to improve the French Special Act 'rights of patients' and we can look at the consequent changes in court cases. Finally, the content of the U.S. case's and the theory of 'the doctrine of res ipsa loquitur' in relation to it show that doctors and hospitals have been forced to shift the burden of proof through this theory. This paper tried to find out the implications of mitigating the burden of proof by reviewing various issues that might be related to medical litigation of hospital infection from a comparative point of view.