• 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.15 no.1
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• pp.239-262
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• 2014

The conventional medical appraisal which was done in the process of medical lawsuit was requested from the court to the designated hospital and was delivered as a pattern of one question and one answer in each. However, the comprehensiveness of medical appraisal which was pursued, for example, in Korea Medical Dispute Mediation and Arbitration Agency, could be guaranteed in terms of in-depth medical analysis as well as the broader capacity of the causality estimation besides. The comprehensiveness of appraisal would also include how well organized hospital system of medical care is and how well correlated job system among medical staffs, when medical dispute was happened at the hospital. This comprehensiveness will exert a big contribution on making a demonstrative medical care to prevent from the medical dispute and it could achieve the national plan of building the patient safety net which is effective in restoring the worsened quality of contemporary medical service. Therefore, the comprehensiveness of medical appraisal has to be designed to go forward interdisciplinary fused speciality rather than one division of medicine, which is also aiming at the reliable and consistent appraisal with the supreme dignity from one window. In addition to that, the objective and concrete frame of comprehensive appraisal under the computed connection has to be deliberated to make itself possible in collaboration with positive participation of medical community. The comprehensiveness of medical appraisal would serve to expand not only the capacity of speciality but also the ability of influence on a restorative justice, so that it give effect to an increased number of mediation and arbitration rather than medical lawsuit as well as a decreased number of the social cost and social conflict.

• The Korean Society of Law and Medicine
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• v.15 no.2
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• pp.227-251
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• 2014

In current law, the premium medical treatment system gives patients the right of choice between normal medical treatment service and premium medical treatment service. Only the doctors having a career more than a certain period of time fixed in the law are eligible for providing the premium medical treatment service. So, the premium medical treatment system is highly related to the patients' right to know and the right of self-determination. The system is also relevant to the so-called 'economic explanation' notion because patients should pay additional fee when they want to use this system. Meanwhile, the situation as follows is problematic as to this system. Although a patient applied for using the premium medical treatment system and the patient also chose his or her own doctor specifically, another doctor who was not selected as premium doctor could make a medical accident. Then, is the another doctor liable for damages because the accident was a medical malpractice or a breach of medical contract? In this study, we are going to examine the problems related with the premium medical treatment system. First, we examine the current law related to the system. Second, we look into the economic explanation duty and its application to the premium medical treatment system. Finally, we examine a real judgment case about a medical practice against the premium medical treatment system and we propose our solution to this case.

• Journal of Korean Neurosurgical Society
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• v.60 no.4
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• pp.385-390
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• 2017

The doctrine of informed consent, as opposed to medical paternalism, is intended to facilitate patient autonomy by allowing patient participation in the medical decision-making process. However, regrettably, the surgical informed consent (SIC) process is invariably underestimated and reduced to a documentary procedure to protect physicians from legal liability. Moreover, residents are rarely trained in the clinical and communicative skills required for the SIC process. Accordingly, to increase professional awareness of the SIC process, a brief history and introduction to the current elements of SIC, the obstacles to patient autonomy and SIC, benefits and drawbacks of SIC, planning of an optimal SIC process, and its application to cases of an unruptured intracranial aneurysm are all presented. Optimal informed consent process can provide patients with a good comprehension of their disease and treatment, augmented autonomy, a strong therapeutic alliance with their doctors, and psychological defenses for coping with stressful surgical circumstances.

• Korea Journal of Hospital Management
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• v.4 no.1
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• pp.147-170
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• 1999

This study was performed to assess the financial performance of medical institutions and examine the affecting factors in Taegu metropolitan and Kyungpook province. The major results are as follows ; The liability to total assets was significantly different according to the ownership type of medical institution. It was the highest in the case of juridical person having a special status. The total assets turnover and value added to total assets were significantly different according to the type of medical institution, period of establishment, and ownership type of medical institution. They were higher in the tertiary medical institution, in private hospital and university hospital, and they were increased with establishment period of medical institution. The growth rate of patient revenues were significantly different according to the type of medical institution, period of establishment, and the growth rate of adjusted inpatient days were significantly different by period of establishment. The return on assets and net profit to gross revenues were the highest in private hospital. Private hospital went into the black, but other hospitals went into the red figures. According to the multiple regression analysis for the net profit to gross revenues, ownership type, period of establishment, and management strategy of medical institution were significant It was higher in private hospital and medical institution with prospector management strategy, and it was increased with establishment period of medical institution. In multiple logistic regression analysis for the status of financial performance in medical institution, period of establishment, management strategy of medical institution were significant It was better in medical institution with prospector management strategy and longer period of establishment.

• The Korean Society of Law and Medicine
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• v.19 no.2
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• pp.139-171
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• 2018

The 「Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes」(hereinafter referred to as 'the Act on Mediation of Medical Disputes') provides that the state should compensate the victims of medical accidents occurred irresistibly in childbirth despite that health and medical service personnel fulfilled their duty of care for their damage within the range of its budget(Article 46 of the Act on Mediation of Medical Disputes). Given that victims of medical accidents could expect demage recovery only through lawsuits thus far, this act can be said to be a groundbreaking act. However, However, as 30% of the costs for such medical accident compensation projects are borne by those who have records of childbirth among the founders of health and medical institutions (Article 21 of the Act on Mediation of Medical Disputes), there has been a question about whether doctors are held responsible despite that the accidents such as the deaths of mothers and newborn babies occurred irresistibly without doctors' fault. However, recently, the Constitutional Court ruled that 'the range of founders of health and medical institutions' and 'share ratios of finances for compensation' in Article 46 (3) of the Act on Mediation of Medical Disputes' related to the imposition of the share of costs are institutional (Constitutional Court ruling dated April 26, 2018, 2015Heonga13, hereinafter referred to as 'the ruling in the case'). Although the ruling in the case was made based on only the principle of statutory reservation and the principle of ban on comprehensive authorization, this paper added a practical judgment. This paper proved that the share of costs in this case has the nature of burden charges in pursuit of study and does not infringe on the property rights of the founders of health medical institutions even in light of the principle of proportionality because there is a legitimate reason for imposing the burden charge. The imposition of the share of costs in the system for compensation for medical accidents occurred irresistibly is against the principle of liability with fault in part. However, the medical accident compensation projects are rational a national policy for the victims of medical accidents and the medical world clearly gains some benefits from the effect to terminate medical disputes. The expansion of finances for compensation through the payments of the share of costs will reduce the suffering and misunderstanding of victims of medical accidents occurred in the process of childbirth and will be very helpful to the construction of stable treatment environments of medical workers by quickly establishing the medical accident compensation projects as such.

• The Korean Society of Law and Medicine
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• v.19 no.2
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• pp.3-40
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• 2018

Conventionally, there were few cases in which a medical accident became a criminal case in Japan. However, after the serious malpractice such as the Yokohama City University Hospital case, prosecutors came to be less hesitant to prosecute a malpractice. In a medical accident, the attribution of the responsibilities among medical personnel becomes one important element of the proof of negligence. The Supreme Court concluded that, when the attribution of the responsibilities is not established among medical personnel to confirm the identity of the patient like the Yokohama City University Hospital case, all the personnel who were involved bear the responsibilities to identify the patient. For serious cases which requireut most carefulness fortreatment such as the Saitama Medical University Hospital case, not only the chief physician in charge of the case concerned but also the director of the branch at the university hospital bear the responsibilities to confirm the treatment policy of the case. After the acquittal of the Ohno Hospital case, the voice demanding more prudent prosecution of malpractices has become stronger than before. Meanwhile, Ministry of Health, Labour and Welfare introduced Medical Accidents Investigation System for the prevention of medical accident and, has reinforced the third party inspection of medical accidents.

• Clinical Endoscopy
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• v.56 no.4
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• pp.499-509
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• 2023

Background/Aims: This study aimed to evaluate the characteristics of endoscopic retrograde cholangiopancreatography (ERCP) or endoscopic ultrasonography (EUS)-related adverse events (AEs) that eventually lead to medical disputes or claims on medical professional liability. Methods: Medical disputes for ERCP/EUS-related AEs filed in the Korea Medical Dispute Mediation and Arbitration Agency between April 2012 and August 2020 were evaluated using corresponding medical records. AEs were categorized into three sections: procedure-related, sedation-related, and safety-related AEs. Results: Among a total of 34 cases, procedure-related AEs were 26 (76.5%; 12 duodenal perforations, 7 post-ERCP pancreatitis, 5 bleedings, 2 perforations combined with post-ERCP pancreatitis); sedation-related AEs were 5 (14.7%; 4 cardiac arrests, 1 desaturation), and safety-related AEs were 3 (8.8%; 1 follow-up loss for stent removal, 1 asphyxia, 1 fall). Regarding clinical outcomes, 20 (58.8%) were fatal and eventually succumbed to AEs. For the types of medical institutions, 21 cases (61.8%) occurred at tertiary or academic hospitals, and 13 (38.2%) occurred at community hospitals. Conclusions: The ERCP/EUS-related AEs filed in Korea Medical Dispute Mediation and Arbitration Agency showed distinct features: duodenal perforation was the most frequent AE, and clinical outcomes were fatal, resulting in at least more than permanent physical impairment.

• The Korean Society of Law and Medicine
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• v.17 no.1
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• pp.299-346
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• 2016

There were also various decisions made in medical area in 2015. In the case that an inmate in a sanatorium was injured due to the reason which can be attributable to the sanatorium and the social welfare foundation that operates the sanatorium request treatment of the patient, the court set the standard of fixation of a party in medical contract. In the case that the family of the patient who was declared brain dead required withdrawal of meaningless life sustaining treatment but the hospital rejected and continued the treatment, the court made a decision regarding chargeable fee for such treatment. When it comes to the eye brightening operation which received measure of suspension from the Ministry of Health and Welfare for the first time in February, 2011, because of uncertainty of its safety, the court did not accept the illegality of such operation itself, however, ordered compensation of the whole damage based on the violation of liability for explanation, which is the omission of explanation about the fact that the cost-effectiveness is not sure as it is still in clinical test stage. There were numerous cases that courts actively acknowledged malpractices; in the cases of paresis syndrome after back surgery, quite a few malpractices during the surgery were acknowledged by the court and in the case of nosocomial infection, hospital's negligence to cause such nosocomial infection was acknowledged by the court. There was a decision which acknowledged malpractice by distinguishing the duty of installation of emergency equipment according to the Emergency Medical Service Act and duty of emergency measure in emergency situations, and a decision which acknowledged negligence of a hospital if the hospital did not take appropriate measures, although it was a very rare disease. In connection with the scope of compensation for damage, there were decisions which comply with substantive truth such as; a court applied different labor ability loss rate as the labor ability loss rate decreased after result of reappraisal of physical ability in appeal compared to the one in the first trial, and a court acknowledged lower labor ability loss rate than the result of appraisal of physical ability considering the condition of a patient, etc. In the event of any damage caused by malpractice, in regard to whether there is a limitation on liability in fee charge after such medical malpractice, the court rejected the hospital's claim for setoff saying that if the hospital only continued treatments to cure the patient or prevent aggravation of disease, the hospital cannot charge Medical bills to the patient. In regard to the provision of the Medical Law that prohibit medical advertisement which was not reviewed preliminarily and punish the violation of such, a decision of unconstitutionality was made as it is a precensorship by an administrative agency as the deliberative bodies such as Korean Medical Association, etc. cannot be denied to be considered as administrative bodies. When it comes to the issue whether PRP treatment, which is commonly performed clinically, should be considered as legally determined uninsured treatment, the court made it clear that legally determined uninsured treatment should not be decided by theoretical possibility or actual implementation but should be acknowledged its medical safety and effectiveness and included in medical care or legally determined uninsured treatment. Moreover, court acknowledged the illegality of investigation method or process in the administrative litigation regarding evaluation of suitability of sanatorium, however, denied the compensation liability or restitution of unjust enrichment of the Health Insurance Review & Assessment Service and the National Health Insurance Corporation as the evaluation agents did not cause such violation intentionally or negligently. We hope there will be more decisions which are closer to substantive truth through clear legal principles in respect of variously arisen issues in the future.

• Archives of Plastic Surgery
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• v.43 no.3
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• pp.278-283
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• 2016

Background Disputes regarding medical malpractice occur between practitioners and patients. As patients have become increasingly aware regarding medical care, an increase in the unexpected side effects of procedures has been observed, thereby leading to an increase in disputes regarding medical malpractice. In this study, we reviewed trends in precedents involving cosmetic surgery-related medical disputes, with the goal of helping to prevent unnecessary disputes in the future. Methods We conducted a search of the judgments made in South Korean courts between 2000 and 2013 that were related to the field of plastic surgery. A total of 54 judgments were analyzed, and the selected precedents were reviewed and classified according to the kind of negligence involved. Results The claim amounts ranged from under 8 million KRW (6,991 USD) to 750 million KRW (629,995 USD). The most common ratio of the judgment amount to the claim amount was 20%-30%. The judgments were classified according to the following categories: violation of the duty of explanation in 17 cases (29%), violation of the duty of care in 10 cases (17%), violation of both duties in 20 cases (35%), and no violation of duty in six cases (10%). Conclusions Cosmetic surgery-related suits require different approaches than general malpractice suits. The Supreme Court requires plastic surgeons to determine the type, timing, methods, and scope of their treatments when considering possible results. Therefore, practitioners should be educated on their rights and responsibilities to enable them to cope with any possible medical dispute that may arise.