• The Korean Society of Law and Medicine
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• v.12 no.2
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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.

• The Korean Society of Law and Medicine
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• v.11 no.2
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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.

• The Korean Journal of Emergency Medical Services
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• v.21 no.2
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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.

• The Korean Society of Law and Medicine
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• v.15 no.2
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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.

• CELLMED
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• v.10 no.3
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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.

• 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.19 no.2
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• pp.41-72
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• 2018

In the division of labor (or teamwork) in medicine, the responsibility of medical and nursing staff should be separated or distributed to justify negligent criminal offenses. The present work refers to the standards by which the due diligence and responsibility of the individual persons are to be determined and delimited. In this context, it has been proven that objective theory as a measure of due diligence is appropriate. From a moral point of view, when assessing due diligence, it makes sense to impose greater individual or higher performance demands on the perpetrator, but law and order require that due diligence should result from socially relevant human behavior. To give objective measure of negligence and to provide the highest level of personal responsibility, so that man can not be burdened too much responsibility and it is accordingly with an equality theorem. Afterwards some points are presented, which should be considered in a concrete fact in the determination of the medical negligence. Medical action has specific characteristics such as professionalism, discretionary and exclusive, unbalance of information. These characteristics distinguish medical actions from general negligence. The general level of knowledge, the urgency, working condition and working environment of the medical facility, duration of the professional practice, assessment of the medical activity are crucial in this context. As a standard of delineation of due diligence, I have used the permitted risk and the principle of trust. In the horizontal division of labor, the principle of trust applies. The principle of trust applies in principle in cases of division of labor interaction, when doctors in the same hospital exercise their own specific occupational field or everyone works in another hospital. However, this is not true for every case. In the vertical division of labor, the principle of trust does not apply and the senior physician can not trust the assistant doctors. In this case, the principle of trust is converted into a duty of supervision for assistant doctors by the senior physician. This supervision requirement could be used as a random check.

• Journal of Arbitration Studies
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• v.26 no.4
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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.

• The Korean Society of Law and Medicine
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• v.8 no.2
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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.

• The Korean Society of Law and Medicine
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• v.11 no.2
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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.