• The Korean Society of Law and Medicine
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• v.14 no.2
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• pp.143-172
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• 2013

In order to achieve the purpose of treatment for patients by a doctor, the instruction explanation obligation, which means that he should give patients the description in more details to prepare for postoperative sequelae or complications, is common with the advice explanation obligation as a doctor should ex-plain some information to patients. Since the advice explanation obligation is the benefit and protection of the law for self determination right, but the instruction explanation obligation is one for the integrity of body and life, one can be distinct from the other. Judgments giving the instruction on the concept of instruction explanation obligation, specific methods of implementation and a range of compensation for damage are recently being made by courts at all levels including the Supreme Court. It is the time to systematize them. The contents which have been mainly discussed so far include the essence of above mentioned instruction explanation obligation. However, when the tendency of practice is considered, the efforts are required to admit the organic relevance between instruction explanation obligation and advice explanation obligation and to explain the relationship without any contradiction. For whereabouts of li-ability of proof, patients theoretically demonstrate the failure to implement it. However, when the theoretical consistency is maintained, it is likely to fail the intent to recognize the instruction explanation obligation and it may ask patients to prove something impossible to be proven. Thus, these things should be considered. Moreover, as the instruction explanation obligation is associated with medicine instruction obligation of a pharmacist and the coverage is being extended, it is the time to require the systematic study on the theoretical limit.

• The Korean Society of Law and Medicine
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• v.12 no.1
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• pp.177-225
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• 2011

Verdicts related to major medical litigation given by the Seoul Central District Court, the Seoul High Court and the Supreme Court in 2010 were analyzed. It's shown that in cases of the medical negligence regarding the occurrence of neonatal cerebral palsy, the plaintiff claims were dismissed using criteria proposed by associations of Obstetrics and Gynecology and Pediatrics in US, and thereof the burden of plaintiffs to prove the medical negligence has increased. In addition, in case of that the expected survival period of infants gets longer, payments for treatment and nursing after survival period determined by judges are made and it was judged to compensate it as a periodical indemnity. In case for the explanation obligation the most frequently mentioned in the medical litigation, in addition to cases of invoking the existing theory of explanation obligation, verdicts to mention the instructions of theory regarding instruction explanation obligation and the possibility of compensation for damages on property are given. Particularly, in cases for a liability of reparation by exaggerating the effects and not disclosing the risks related to treatment with stem cells, even if the treatment not approved by Food and Drug Administration is in violation of the Pharmaceutical Affairs Law, it's not illegal as violation in Pharmaceutical Affairs Law itself. But there is a certain verdict to present the possibility of an extension of the theory of explanation obligation by acknowledging the liability of reparation caused by illegal acts with no explanations of effects and risks of treatment with stem cell by doctors and pharmaceutical companies. In an incident in which a mental patient fell and died through the opened door of the roof at the hospital, a liability of reparation was acknowledged due to defects in structure installation management and this verdict drew an attention since the overall management responsibility about patients including structures was acknowledged to the hospital besides the obligations on medical practice. In case of the verdict without giving the opportunity to state the opinion with respect to the main legal issues, the responsibility of the court was emphasized since the court did not fulfill the explanation obligations. There were some cases in which payments for nursing and caring to a patient in vegetative state during the plastic surgery was admitted. However, in dental-related incidents, the proportion of cases in which plaintiff won was low since the difficulty of proving may be reflected. In the area of administrative litigation, unlike the existing position regarding arbitrary medical charge cover collected from patients in hospital, the verdict to admit the legitimacy of collection of medical treatment was given and attracted the attention of people. Verdict in which the expression related to medical advertisement was not exaggerated disposed the original verdict and pointed out the problem of excessive regulations on medical advertisement. The effort to analyze the trend of verdicts of court through reviewing the decisions and to organize should be continued, but the full decision should be disclosed as a base, and people and systems to enable the all time monitoring should be prepared.

• The Korean Society of Law and Medicine
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• v.14 no.1
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• pp.303-354
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• 2013

In 2012, the major jurisdictions regarding medical cases caused the controversial issues towards medical and legal fields by getting the judgments from the Supreme Court, which admitted the exceptional admissibility on discretionary grant. By regarding the serial negligence of medical organizations as a separate tort, the sentences which made up irrationality, were spoken by the court. As a result, if the treatment was made, which did not follow the entered matters in medical documents attached, the court announced the jurisdiction that presumes the negligence, which provided the evidence of negligence; on the other hand, this gave had the burden to medical branch to take great care for medicinal treatment. To be applicable for the Principle of Trust, the doctors have to give and take the necessary information for the treatment process and symptom decisions, which also commented in the court. Thus, this case made it difficult to apply the Principle of Trust and considered all the conditions as tough ones, which eventually induced lesser faults for patients' care. Moreover, the court confirmed that the medical ads sending the emails to the members belong to the internet portal sites, are not the inducing behavior by considering that the actions are only medical ads. Furthermore, in the case of Namsu Kim, the court's interpretation was rather limited the definition for medical practice that announced limited Erweiterung der Strafbarkeit cases by lower courts. As a consequence, it is very interesting whether the Supreme Court may change their position and concerning the duty of explanation, the trend to expand the contents and scopes for the duty of explanation continues by admitting instruction explanation obligation and all the compensations and so on.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.163-194
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• 2017

Coronary artery disease has increased in Korea as the country enters the aged society. It is well known that the incidence of coronary artery disease is related to aging, hypertension, diabetes, hyperlipidemia, and dietary habit. For effective treatment of significant coronary stenosis, close coordination between cardiac surgery and cardiology team is essential. Especially cardiologists' decision whether to do the stent placement or CABG is very important because the cardiologists usually start to consult the patients for their treatment. Recently, non-surgical interventions(that is stent placement) in cardiology field have dramatically increased as the national insurance system removed the limitation of the number of stents deployed. However, accidents are often caused by inappropriate use of stents, especially in patients with triple coronary disease or left main disease with heavy coronary calcifications. Another aspect of stent placement is to cope with an emergency case in the event of coronary rupture or pericardial tamponade during coronary interventions without cardiac surgeons. In the past two years, the Korea Consumer Agency (Consumer Dispute Coordination Committee) analyzed eight cases of medical dispute settlement. Only two hospitals were manned with both cardiologists and cardiac surgeons. Seven patients died of procedures of stenting and five patients died on the day of the procedure. Among the 8 cases, 5 cases showed 3 vessel disease and the rest of the cases had either severe calcification, complete occlusion or poor coronary antomies for stenting According to a 2017 national data registry of coronary stenting, less than 3 drug-eluting stents were implanted in 98% of all patients. In 2015, the number of stent procedures was 38,922, and approximately in 800 (2%) cases, more than four stents were used per patient. We emphasize that it is necessary to seriously consider the cost-benefit analysis between stent and CABG. The patient has the right to choose the right procedure by asking the liability of 'instruction explanation obligation'. He should be well informed of the pros and cons of both procedures to avoid overuse of stent. It can be solved by intimate discussion of individual cases with the cardiac surgeon and the patient. Unilateral dialogue with the patient, forceful restriction on the number of stenting, lack of surgeon's backup in difficult cases should all be avoided. It is also necessary to solve the problem not only at the hospital level, such as multidisciplinary integrated medical care, but also a nationwide solution such as expanding cardiac surgeons as essential personnel to public officials.