• 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.23 no.1
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• pp.149-176
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• 2022

South Korean law strictly prohibits engagement in medical activities by non-medical practitioners. In the country, tattooing is classified as a medical practice, and non-medical practitioners who engage in it are penalized because they are unauthorized to carry out this procedure. In reality, however, people rarely seek tattooing services from medical personnel. Arguing that their freedom of job selection is violated, non-medical personnel who make a living as tattoo artists reject the characterization of the procedure as a form of medical treatment and demand the decriminalization of tattooing by non-medical practitioners. Nevertheless, tattooing can cause health- and hygiene-related dangers when it is not performed by medical professionals because it involves penetration into the skin using needles. Hence, stringent management is necessary for infection prevention. The gap between reality and the law gives rise to the need for proactive thinking about the institutionalization of tattoo practice by non-medical personnel. Policymakers should reflect on the fact that only minimal tattooing services are currently performed by medical staff while also accounting for health and safety. On this basis, this study examined tattoo-related legislation in South Korea to determine whether the procedure corresponds to medical practice and identify ways to solve problems that occur from the perspective of health care. As a response that promotes safety and reflects reality, this research proposed a three-phase approach.