• 대한한의학회지
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• 제41권3호
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• pp.66-80
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• 2020

Objectives: We investigated the current status of the consent form for bee-venom pharmacopuncture therapy, which is using in Korean medicine hospitals. We suggest the development of a standard informed consent form. Method: Through the questionnaire survey, status of using informed consent form was identified at 24 Korean medicine hospitals. We analyze different types of informed consent form, which was developed by each hospitals. We investigated the types of informed consent forms for various medical procedures through electronic searches. A standard informed consent form for bee-venom pharmacopuncture therapy was developed based on the medical law and the standard informed consent form for medical procedures developed by Korea Fair Trade Mediation Agency. Result: In our survey, 65% of the hospitals do not use consent well, only 35% of the hospitals use informed consent form, and the most hospitals use self-developed informed consent form. As a result of analyzing the contents of informed consent form used in each hospitals, the explanation of diagnosis, treatment precautions, suggestions for other treatments, consequences of not performing the scheduled procedure, possibility of treatment change was insufficient. 48% of hospitals manage consent in recording on a chart, 39% in scanned documents, and 13% in digital electronic consent form. Conclusion: A standard informed consent form for Bee-venom pharmacopuncture therapy include diagnosis, effectivness, necessity, indications, method, skin reaction test, hypersensitivity questionnaire, treatment precautions, possible hypersensitivity reactions and countermeasures, suggestions for other treatments, consequences of not performing the scheduled procedure, possibility of treatment change and the name of doctor.

• 의료법학
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• 제18권1호
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• pp.3-35
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• 2017

우리나라에서는 1979년 대법원이 처음 설명의무 위반으로 인한 손해배상을 인정하였고, 그 후 판례를 통해서 설명의무의 구체적 내용이 형성 발전되어 오고 있다. 의사의 설명의무는 헌법 제10조와 진료계약상의 의무에 근거하고 있고, 보건의료기본법 제12조 및 개별 법률에서도 설명의무에 관한 내용을 규정하고 있다. 그런데, 2016. 12. 20. 개정된 의료법 제24조의2에 설명의무에 관한 규정이 신설되었고, 개정 의료법은 2017. 6. 21.부터 시행될 예정이다. 개정 의료법에 따르면, 설명의무의 대상이 되는 의료행위는 '사람의 생명 또는 신체에 중대한 위해를 발생하게 할 우려가 있는 수술, 수혈, 전신마취'이다. 이러한 의료행위를 할 때에는 반드시 사전에 법정사항이 기재된 서면으로 설명을 하고 동의를 받아야 한다. 만약, 이를 위반하면 300만원 이하의 과태료 처분을 받게 된다. 개정 의료법의 내용과 학설 및 판례를 통해서 인정되어 온 설명의무에 관한 기존 법리를 비교 검토해 보면, 양자 간에 상당한 차이가 있음을 확인할 수 있다. 그에 따라 개정의료법의 시행 이후에도, 기존 설명의무에 관한 법리는 크게 영향을 받지 않을 것으로 보인다. 그러나, 동일한 사안에서 설명의무 위반 여부에 관한 판단이 민사상 손해배상사건과 의료법 위반으로 인한 과태료처분사건에서 서로 달라지는 것은 법적 안정성이나 법질서 전체 통일의 관점에서 바람직하지 않다. 개정 의료법상의 설명의무에 관한 내용을 기존 법리에 맞게 수정하거나 독일의 경우와 같이 진료계약의 내용에 포함시켜 민법에서 규율하는 것이 바람직하다고 생각한다.

• 부모자녀건강학회지
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• 제6권1호
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• pp.18-30
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• 2003

Congenital heart disease is the most frequently shown congenital disease among children, most of them can be corrected with operation. However, Patients and their parents need nursing intervention when they face this risky incident of operation. Therefore, parents' experiences are absolutely needed to plan nursing intervention to give practical help to the patients and their parents. The purpose of this study is to provide basic resources to develop a feasible intervention program for the parents by understanding the experiences related to the informed consent of cardiac surgery of their child. From January to June 2003, 10 parents of children patients with congenital heart disease were interviewed who filled out Operation Agreement before the primary operation after they are diagnosed as congenital heart disease in pediatric chest surgery of A hospital in Seoul. They were asked to give opinion regarding pre-operation needs and the interviewed information was analyzed. The results of this study are as follows : Firstly, they were asked what they felt before they were told about the operation of their children from the doctor before filling out the informed consent of operation. They felt 1) vague, 2) confusion of choose, 3) risky, 4) resented, 5) uneasy, 6) guilty, and 7) the burden of operation. Secondly, they were asked what they felt after they filled out the informed consent of operation and the doctor gave them detailed information on the operation of their children. They felt 1) confused, 2) responsible, 3) rejected, 4) angry, 5) plain, 6) to have hope, 7) trying to trust medical people, 8) that consolation is needed, and 9) conditional reduction of the burden of operation. Thirdly, followings are the categories of congenital parents' demand before operation based on the analysis of experiences related to the preparation of the informed consent of operation. 1) Information Demand (1) Anticipatory information (2) Concrete and precise information (3) Individual information 2) Support (1) Empathy (2) Parental supporting (3) Support of parents in the same situation 3) Education and consulting (1) Children-oriented Education (2) Consultation Considering the results of this study, parents of the child with congenital heart disease seem to have various emotional experiences related to filling out the informed consent and they need concrete and practical helps before cardiac surgery. This study proposes that systematic nursing intervention is needed according to the needs of the parents who have the child with congenital heart disease before operation in the field of child health nursing.

• 의료법학
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• 제16권2호
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• pp.3-26
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• 2015

수술행위는 신체에 대한 침습을 포함하는 것이므로 의료인은 수술주체와 수술행위의 내용을 충분히 설명하여 환자가 그 수술을 받을 것인지의 여부를 선택하도록 하여야 하고, 이는 헌법 제10조에서 규정한 개인의 인격권과 행복추구권에 의하여 보호되는 환자의 자기결정권에 해당한다. 미국에서는 '대리수술'의 경우 폭행에 해당한다고 판단한 사례가 있으나, 국내에서는 아직까지 수술의사에 대한 상해죄 등을 인정한 사례가 없고, 수술행위는 환자의 신체에 대한 적대적인 손상행위가 아니므로 상해죄로 처벌하기 어려운 면이 있다. 또한 환자의 '가정적 승낙'을 폭넓게 인정하는 판례의 입장에 따르면 의사의 전단적 의료행위에 대하여 업무상과실치사상죄로 처벌하기도 어려우므로, 환자의 자기결정권 강화를 위하여 의사의 설명의무를 의료법 등에 명문화하고, 대리수술 등 전단적 의료행위에 대하여 별도의 처벌규정을 입법화할 필요가 있다.

• 의료법학
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• 제10권2호
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• pp.11-36
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• 2009

This thesis introduces the trends of korean courts' ruling on damages in medical malpractice cases for past 10 years. First of all, Korean courts' ruling have had a tendency to pay only non-economic damages for not taking the informed consent. If a doctor cannot get the informed consent from a patient, he compensate only non-economic damages for the infringement of self-determination rights of patient. It's enough for the plaintiff to prove the infringement of self-determination rights, if the plaintiff just want to get non-economic damages. The Korean Supreme court have ruled that if plaintiffs want to get economic damages for the infringement of self-determination rights or informed consent, plaintiffs must prove that the infringement of self-determination rights is the proximate cause of the economic damages of patient. There is another tendency for the Korean Supreme court to limit the damages in medical malpractice cases on the ground of patient's diseases' dangerousness or patient's idiosyncrasy. In the past courts often limit the damages only to 70~80% of total damages, but now a days courts mostly limit the damages to 20~30%. This thesis also introduce the Korean courts' trends about Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care.

• 대한임상독성학회지
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• 제3권1호
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• pp.1-10
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• 2005

Gastric lavage is now known to be ineffective, unnecessary or hazardous in some circumstances where it used to be performed as a routine. This article concerns the medico-legal aspect of forced gastric lavage. The Supreme Court 2005.1.28, 2003da14119 is the case where a patient, who ingested the organophosphate insecticide to attempt suicide and refused lavage. At first we discuss the effectiveness or hazards of lavage because a very high degree of proof -of negligence, not error of clinical judgment - would be required. Lavage, with or without the informed consent, performed negligently which result in harm could, of course, give rise to a claim in negligence. A doctor might also be held negligent in failing to perform an act which he/she had a duty to perform.

• 의료법학
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• 제11권1호
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• pp.397-445
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• 2010

This thesis introduces the trends of korean courts' ruling on damages in medical malpractice cases for past 10 years. First of all, Korean courts' ruling have had a tendency to pay only non-economic damages for not taking the informed consent. If a doctor cannot get the informed consent from a patient, he compensate only non-economic damages for the infringement of self-determination rights of patient. It's enough for the plaintiff to prove the infringement of self-determination rights, if the plaintiff just want to get non-economic damages. The Korean Supreme court have ruled that if plaintiffs want to get economic damages for the infringement of self-determination rights or informed consent, plaintiffs must prove that the infringement of self-determination rights is the proximate cause of the economic damages of patient. There is another tendency for the Korean Supreme court to limit the damages in medical malpractice cases on the ground of patient's diseases' dangerousness or patient's idiosyncrasy. In the past courts often limit the damages only to 70~80% of total damages, but now a days courts mostly limit the damages to 20~30%. This thesis also introduce the Korean courts' trends about Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care.

• 임상간호연구
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• 제16권3호
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• pp.73-84
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• 2010

Purpose: The purpose of this study was to investigate the ethical awareness and attitude of patients' families towards Do-Not-Resuscitate(DNR), and thus provide basic information required to develop Korean appropriate DNR instructions and practice informed consent for DNR. Methods: During April 2010, 219 patient family members visiting the hospital were surveyed using a questionnaire. Results: Most of the participants preferred DNR to meaningless treatment for incurable patients. They recognized the necessity of explaining DNR to the patient with a terminal disease. They also requested DNR orders for themselves if they were in the same medical condition. In making a DNR decision, the patient's family agreed and preferred that it reflect the opinion of the patient and the doctor in charge. They also agreed that treatment should be given with the best efforts even if a DNR decision had been made for the patient. Conclusion: To make a decision on DNR for a patient who is terminally ill or for whom survival is not possible, a practice of informed consent and guidelines for executing the DNR reflecting the patient's opinion are required.

• 의료법학
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• 제10권1호
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• pp.389-420
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• 2009

Main Issue of Supreme Court Decision 2005Da16713 Delivered on June 24, 2005 is about the duty of medical care in the interhospital transfer of patients. According to the above Supreme Court Decision, in the interhospital transfer of patients, the decision to transfer should make from the aspect of medical treatment. The hospitals and doctors keep the duty of medical care. In addition to the duty for hospitals/doctors to check the capacity and availability of the hospital to which the patient is transferred, there are also duties to inform about emergency medical service and to sufficiently explain the need for the transfer, the medical conditions of the patient to be transferred and the hospital from which the patient is transferred. The hospital to which the patient is transferred must be thoroughly informed about matters such as the patient's conditions, the treatment the patient was given and reasons for transfer. including information upon referral, completeness of medical records, patient monitoring and so on. The interhospital transfer requires the consent of doctor belonging to the hospital to which the patient is transferred after the consideration of capacity and availability of the hospital and the informed consent of patients or legal representatives.

• 의료법학
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• 제14권2호
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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.