• 의료법학
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• 제12권2호
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• pp.219-263
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• 2011

"Wrongful conception" is a medical malpractice claim in which the plaintiff is the parent of a normal, healthy infant whose conception was unplanned and unwanted. Medical malpractice in wrongful conception can be the result of a failure to provide informed consent to a patient, failure to properly perform a surgery, or a physician's negligent handling of a patient's problems. In the concrete, wrongful conception cases fall into two categories; those involving pre-conception negligence, such as a failed contraceptive, sterilization or failing of the controlling of embryo-number on the IVF, and those involving post-conception negligence, such as a failure to diagnose a pregnancy or to perform an abortion procedure. In addition, Medical malpractice can be the result of a failure to provide informed consent to a patient. When bad results occur by medical malpractice or failure to provide informed consent to a patient, the range of recovery of damages is decided by a traditional civil liability law. However the calculation of damages for wrongful conception is not easy because the high value of life is included in that case. So many courts opinions in foreign country and Seoul High Court decision in 1996 allow damages for the pregnancy, birthing process and sterilization costs, but refuses to allow damages for child rearing expenses. As to the range of recovery of damages for wrongful conception, one approach says that to allow damages in a suit such as this would mean that the physician would have to pay for the fun, joy and affection which plaintiff will have in the rearing and educating of the plaintiff's baby. To allow such damages would be against the dignity of the baby based on article 10 of the Constitution. However another approach says that damages are recoverable for all expenses related to child birth as well as for child rearing costs. Because the damages that the parents should bear a burden to the tort damage done is not a baby itself but child rearing costs. In other words, although the baby is healthy or not, economic burden of the parents can not be disregard. And denial of compensation for costs of child rearing may invalidate the role of liability law, grant the physician with a exemption certificate of liability. As a result, the medical field of procreation can be easily isolated from a liability of reparation. Therefore, on the liability law like the other medical malpractice action, parents who became pregnant or gave a birth by physician, wrongfully performed sterilization operation, etc. should be compensated for all damages relevant to unplanned and unwanted conception or birth as well as costs of child rearing.

• 의료법학
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• 제11권2호
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• pp.181-208
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• 2010

Maternity services is often perceived as a troublesome business and obstetric litigation is on the increase in Western countries. Overall, the number of claim and cost of litigation to the NHS Litigation Authority (NHSLA) from maternity services in the UK is increasing every year. Maternity services account for 60-70% of the total sum paid. This has widespread implications for both the individual practitioners and the institutions where they work, due to increasing malpractice insurance premiums. Fear of litigation is also attracting fewer medical graduates into the specialty, leading to a recruitment crisis in obstetrics and gynaecology. The litigation process can cause pain, suffering and distress to clinicians as well as to the patients and their families. Litigation in maternity services is the result of a complex of events when malpractice (presumed or real) impacts on the attitude of pregnant women and their environment. In such complexity, information is mandatory but may often be misinterpreted. If messages are not tailored to the receiver's capacity, communicating well with the pregnant patient becomes crucial. Therefore, to reduce medicallegal issues in obstetrics, increasing attention and an applicable standard of obstetric care to avoid negligence and medical errors should go along with other measures. Considering UK's experiences, NHS redress scheme make it easier to pursue small claims and birth related claims, without necessarily reducing the number of claims processed through the conventional legal system and perhaps encouraging even more of them. The task of dealing with the greater number of inquiries into their practice would inevitably create an added burden for clinicians and hospital managers. Thus further proposals are required to limit the cost of processing inflated claims and to consider whether clinicians should be given some protection from litigation alleging a failure to prevent birth related impairment.

• 한국응급구조학회지
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• 제21권2호
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• pp.79-88
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• 2017

Purpose: The study investigated the perception, report, and education of elder abuse in 119 emergency medical technicians (EMTs) in Korea. Methods: A self-reported questionnaire was distributed to 110 EMTs in K city, and 100 answers were collected from June 1 to 10, 2015. The study instrument was perception regarding elder abuse and education inventory developed by Kim and Kim. Data were analyzed using SPSS/WIN 18.0 version. Results: The elder abuse perception score was 3.81 on a Likert 4-point scale. Physical abuse was the most common type, followed by verbal, financial, negligence, and emotional abuse. Most EMTs recognized that is important for the prevention of elder abuse, but most of them had no experience in reporting abuse. A majority of the EMTs had attended an elder abuse program and recognized the importsnce of such program. Conclusion: This study suggests the necessity of more targeted education of elder abuse prevention combined with family counseling methods and practical approach toward awareness of elder abuse.

• 의료법학
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• 제15권2호
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• pp.31-60
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• 2014

In this paper the good Samaritan civil liability is argued. In many cases some damage could be caused by an emergency medical service. In such situations the degree of duty of care taken by the service provider would be alleviated depending upon the degree of emergency. Then the service provided by anyone not carrying any duty to do so could be generally ruled by the 'Korean Civil Act' Article 735. This article is related to the management of affairs in urgency. The application of this article means the mitigation of civil liability of the service provider. If the service provider not carrying any duty to provide it "has managed the affairs" of the service "in order to protect the" victim "against an imminent danger to the latter's life", the provider "shall not be liable for any damages caused thereby, unless he acted intentionally or with gross negligence". Korea has another rule applied in such a situation, that is the Korean 'Emergency Medical Service Act' Article 5-2. This article is established for the exemption from responsibility for well-intentioned emergency medical service. It could be referred to as the Good Samaritan law. It provides: "In cases where no intention or gross negligence is committed on the property damage and death or injury caused by giving any emergency medical service or first-aid treatment falling under any of the following subparagraphs to an emergency patient whose life is in jeopardy, the relevant actor shall not take the civil liability ${\cdots}$" In this paper the two articles is compared in the viewpoints of the requirements for and effects of the application of them respectively. The 'Korean Civil Act' Article 735 is relatively general rule against the the Korean 'Emergency Medical Service Act' Article 5-2 in the same circumstance. Therefore the former could be resorted to only if any situation could not satisfy the requisites for the application of the latter. In this paper it has suggested that the former article be more specific for the accuracy of making decision to apply it; and that the latter be revise in some requirements including the victim, the service provider, and the service.

• 셀메드
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• 제10권3호
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• pp.18.1-18.4
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• 2020

Among five sense organs or Gyanendriyas 'Eyes' are considered as most important sense organs. They are said to be the path to mind and seat of Tejas (Light). Now a days due to their overuse and negligence in maintenance we are facing many eye related problems like Dry Eye Syndrome, Cataract, Age related Macular Degeneration, Glaucoma, Computer Vision Syndrome etc. To observe the association of defective lifestyle and related eye problems with their preventive measures, different Ayurvedic procedures are reviewed from ancient literatures and some modern researches. Dinacharya (Daily regimen) explained in Ayurveda helps to prevent many derangements. Lifestyle modification in terms of proper daily regimen and dietary regimen could help to prevent eye problems. Padabhyanga (foot massage) is one of the procedures mentioned in Dinacharya, an effective therapy for healing of eye disorders.

• 의료법학
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• 제19권1호
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• pp.207-254
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• 2018

2017년 주요 판결 중에는, 진료계약과 함께 체결되는 틀니제작계약의 법적성질을 분리하여 후자의 경우 도급적 성질이 있다는 판결과 태아보험은 계약체결 후 1회 보험료를 받은 후부터 그 효력이 발생한다는 보험법리를 활용하여 민법에서 논의되는 전부노출설의 한계를 극복한 판결이 선고되었다. 약화사고와 관련하여 의료인의 책임을 인정하는 판결이 증가하면서 직접 약을 제조 교부하는 약사의 복약지도 등을 강화해야 한다는 의견이 있었고, 감염관리와 관련하여 법원이 과실을 부정하는 방향으로 사실관계를 해석하거나 적용한 데 대한 비판과 함께 병원감염사건의 특수성에 비추어 병원감염 관리 및 그 피해 구제를 위한 제도적 장치마련, 소송법상 증명책임 전환 등 제도의 개선이 필요하다는 의견이 있었다. 설명의무 관련 판결에서는 이미 설명이 되었던 부분이나 설명을 하지 않더라도 해당 진료행위를 수행하였을 것이기 때문에 설명의 대상이 되지 않는다는 판례 등 설명의무의 대상과 관련한 판결들이 다수 선고되었고, 손해배상의 범위와 관련하여 유방을 흉부 장기로 보아 다발성 반흔 구축 및 변형을 장해로 인정한 사건이 선고되어 많은 논의를 불러 일으켰다. 진단서와 관련한 의료법 해석에 대한 대법원 판결은 법률 규정이 가진 해석범위를 넘은 유추해석이라는 지적이 있었다.

• 의료법학
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• 제19권2호
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• pp.41-72
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• 2018

분업적 의료행위에 있어서 관여자들에 대한 의료과실을 인정함에 있어서는 그의 형사 책임을 제한하거나 또는 형사책임을 적절히 분배할 필요성이 있다. 본 논문은 분업적 의료행위에 있어서 의료인의 주의의무위반에 대한 판단기준과 이를 제한하는 규칙을 다루고 있다. 의료행위에 있어서 주의의무위반에 대한 판단기준으로 객관설이 타당함을 논증하였다. 주의의무를 판단함에 있어서 행위자 개인에게 최상의 주의의무 또는 완벽한 주의의무를 요구하는 것도 도덕적 요청으로는 의미가 있을지 모르지만, 법질서가 요구하는 수준은 사회적으로 상당한 수준 또는 '정상의' 주의의무라고 해석하는 것이 타당하다. 과실기준을 객관화함으로 개인이 책임을 지는 한계의 상한을 설정해줌으로써 개인에게 지나친 부담을 안겨주는 것을 방지하고 평등의 원칙에도 부합한다. 구체적 사례에 있어서 의료과실을 판단하는 경우에도 고려해야 할 표지를 설명하였다. 의료행위는 일반적 과실과는 다르게 전문성, 재량성과 같은 특수성, 정보의 편중성과 독점성이 있기 때문이다. 일반적 의학수준, 긴급성과 의료설비와 같은 의료환경과 조건, 의료행위의 전문성, 의료행위의 재량성에 대하여 검토하였다. 주의의무를 제한하는 규칙으로 허용된 위험의 이론과 신뢰의 원칙을 검토하였다. 수평적 분업관계에서는 신뢰의 원칙이 적용된다. 같은 병원 의사들이 각각 전문분야를 가지는 경우, 다른 병원 의사들 사이의 관계의 경우에는 원칙적으로 신뢰의 원칙이 적용된다. 그러나 예외적으로 신뢰의 원칙이 적용될 수 없는 경우도 존재한다. 수직적 분업관계에서는 신뢰의 원칙이 적용되지 않으며 상급자는 하급자를 신뢰할 수 없다. 이 경우 상급자는 하급자에 대한 위험감독의무로 전환된다. 관리의무는 임의적·간헐적 심사(stichprobenartige Überprüfungen)를 하는 것으로 충분하다고 생각한다.

• 한국중재학회지:중재연구
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• 제26권4호
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• pp.129-149
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• 2016

Medical dispute means the dispute between the hospital and the patient due to a medical accident. In general, medical accidents must be in accordance with the terms that are used in the medical dispute adjustment method stated in Article 2 (definition). In relation to this, there is a need to discuss an efficient operation scheme for Alternative Dispute Resolution (ADR) in medical disputes. In addition, it is necessary to look at issues of civil liability and criminal liability. In particular, in the consumer dispute arbitration committee, there is a case to make a "decision not to adjust" in aggressive intervention in the process of conflict resolution. The medical staff, on the basis of its "decision," can use this as a proven material for civil and criminal cases. This is rather upon the determination of the consumer council as a typical side effect to defend the user's perspective. This is the "decision" as was expressed from an order, "not adjusted." It is also determined to be easy and clearly timely. In the medical litigation, it is requesting the burden of proof of a patient's cause-and-effect relationship with the doctors committing negligence and medical malpractice. This seems to require the promotion of legislation in the direction to reduce future cases. It is determined that the burden of proof of medical accidents must be improved. The institution receiving the medical accident should prevent a closure report. Further, it is necessary to limit the transition to a franchise point. In this paper, we understand the problems of the current medical dispute resolution system, trying to establish a medical dispute resolution system desirable through an efficient alternative. In addition, it wants help in the protection and realization in medical consumers' and patients' rights. The relevant authorities will take advantage of these measures. After all, this could contribute to the system for a smooth resolution of a medical dispute.

• 의료법학
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• 제8권2호
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• pp.69-118
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• 2007

In providing general medical treatments, the medical service contract between the patient and the doctor is the mutually responsible onerous contract. However, the nature of the mutually assumed contract standings of the patient and the doctor has been changing since the implementation of the national health insurance program. For instance, besides the cases of beyond excessive medical charges and medical negligence, if the doctor charged for his/her medical treatments violating the post-treatment/nursing cover criteria, the overpaid medical charge, regardless of being collected with the patient's consent, has to be refunded back to the patient. Medically needed aspects, treatment results, and unfair benefits favoring the patient are not at all taken into consideration in the health insurance scheme. This makes it easier for patients to get refunds for their share of the medical payments by involving the Health Insurance Review & Assessment Service or the National Health Insurance Corporation, without engaging in civil law suits (for reimbursement claim) against doctors. In other words, the doctor's responsibility to provide medical treatments and the patient's responsibility to pay for the medical treatment provided within the contractual realm are being demolished by the administrational arbitration of the National Health Insurance system. The basic rights of medical service providers, and the patient's right to choose are as important constitutional rights, as the National Health Insurance program, which is essential in the social welfare system. Furthermore, the development of the medical fields should not be prevented by the National Health Insurance system. If the medical treatment services can be divided into necessary treatments, general treatments, and high quality treatments, the National Health Insurance is supposed to guarantee the necessary and general treatments to provide medical treatments equally to all the insured with limited financial resources. However, for the high quality treatments, it is recommended that they should not be interfered by the National Health Insurance system, and that they should be left to the private contract between the patient and the doctor.

• 의료법학
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• 제11권2호
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• pp.149-179
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• 2010

In November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. After the Korean Constitutional Court's judgment, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On January 2010, the old joint penal provisions of 110 laws were revised. The new revised joint penal provision adds only an additional sentence: "If a juristic person, an entity or an individual perform due care and supervision over its employee for the prevention of such a crime, it will be exempted from the punishment". But an presumption of negligence clause that is added in the new revised joint penal provision is still vacuum in concerned with supervision responsibility. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. Especially, when joint penal provision is applied to hospital as administrative punishment, according to the hospital is a (juridical) foundation or not, the application of the joint penal provision is different and unfaithful. In my opinion, therefore, a corporation liability could be considered according to various liability of employee's business and the crime its employee committed because of an organizational failure of the corporation.