• 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.

• Journal of Hospice and Palliative Care
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• v.25 no.1
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• pp.1-11
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• 2022

The Act on Decisions on Life-Sustaining Treatment has been in effect since 2018 for end-of-life patients. However, only 20~25% of deaths of terminally ill patients comply with the law, while the remaining 75~80% do not. There is significant confusion in how the law distinguishes between those in the terminal stage and those in the dying process. These 2 stages can be hard to distinguish, and they should be understood as a single unified "terminal stage." The number of medical institutions eligible for life-sustaining treatment decisions should be legally expanded to properly reflect patients' wishes. To prevent unnecessary suffering resulting from futile life-sustaining treatment, life-sustaining treatment decisions for terminal patients without the needed familial relationships should be permitted and made by hospital ethics committees. Adult patients should be permitted to assign a legal representative appointed in advance to represent them. Medical records can be substituted for a patient's judgment letter (No. 9) and an implementation letter (No. 13) for the decision to suspend life-sustaining treatment. Forms 1, 10, 11, and 12 should be combined into a single form. The purpose of the Life-sustaining Medical Decisions Act is to respect patients' right to self-determination and protect their best interests. Issues related to the act that have emerged in the 3 years since its implementation must be analyzed, and a plan should be devised to improve upon its shortcomings.

• The Korean Society of Law and Medicine
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• v.20 no.3
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• pp.83-139
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• 2019

Recognition of liability for damages due to medical malpractice has been developed largely on the basis of two paths. First is the case where there is an error in a physician's medical practice and this infringes upon the legal interests of life and body, and the compensation for monetary and non-monetary damages incurred from such infringement on life and body becomes an issue. Second is the case where there is a breach of a physician's duty of explanation that results in a infringement on the patient's right of autonomous decision, and the compensation for non-monetary damages incurred from such infringement becomes an issue. However, even if there is a medical error, since it is difficult to prove the causation between the medical error of a physician and the infringement upon legal interests, the physician's responsibility for damage compensation is denied in some cases. Consider, for example, a case where a patient is already in the final stage of cancer and has a very low possibility of a complete recovery even if proper treatment is received from the physician. Here, it is not appropriate to refuse recognition of any damage compensation based on the reason that the possibility of the patient dying is very high even in the absence of a medical error. This is so because, at minimum, non-monetary damage such as psychological suffering is incurred due to the physician's medical error. In such a case, our courts recognize on an exceptional basis consolation money compensation for losing the chance to receive proper treatment. However, since the theoretical system has not been established in minutiae, what comes under the benefit and protection of the law is not clearly explicated. The recent discourse on compensating for damages incurred by patients, even when the causation between the physician's medical error and infringement upon the legal interests of life and body is denied, by establishing a new legal interest is based on the "legal principle of loss of opportunity for treatment." On what should be the substance of the new legal interest, treatment possibility argument, expectation infringement argument, considerable degree of survival possibility infringement argument and loss of opportunity for treatment argument are being put forth. It is reasonable to see the substance of this protected legal interest as "the benefit of receiving treatment appropriate to the medical standard" according to the loss of opportunity for treatment argument. The above benefit to the patient is a value inherent to human dignity that should not be infringed upon or obstructed by anyone, and at the same time, it is a basic desire regarding life and a benefit worthy of protection by law. In this regard, "the benefit of receiving treatment appropriate to the medical standard" can be made concrete as one of the general personal rights related to psychological legal interest.

• The Korean Society of Law and Medicine
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• v.16 no.1
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• pp.3-82
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• 2015

This paper is concerned in the theme of the liability for the breach of duty to inform(Haftungszurechnung der $Aufkl{\ddot{a}}rungspflichtverletzung$) and the malpractice of cosmetic surgery. Here, the terms, treatments for healing purposes and purely medical-technical cosmetic operations are well integrated in the category of "medical conduct(medizinische Handlung)" within the meaning of the public and administrative 'Medical Law'. In the judgment of 6. 13. 2013 Az. 2012DA94865 provides the KHGH(Korean Highest Court of Justice) to inform the patient about the prospects and risks of cosmetic surgery(Infrabrow Excision Blepharoplasty) stringent requirements, similar to the judicature of BGH(cf. BGH, Urt. v. 6. 11. 1990, Az.: VI ZR 8/90). Even in the judgment of 5. 12. 2014 Az. 2013GASO865646 the SZLG(Seoul Central Regional Court) recognizes the physician contract for 'cosmetic septoplasty' as a sort of contract for work. The medical treatment(${\ddot{a}}rztliche$ Heilbehandlung) is still regarded as a prototype of the medical activity, therefore in the meaning of the 'Civil Law(KBGB)', its term needs to be used immediately for healing purposes. The cosmetic operation, desired by a patient, differs from the healing treatment by the element of "indication" and the fact that the "healing purpose(Heilzweck)" itself is missing. In comparative context - methodically fully aware that the unreflective term transfer between different laws might contradict their legal purposes - a series of judgments BSG(BSGE 63, 83, BSGE 72, 96, BSGE, 82, 158, BSGE 93, 252 etc.) and some judgments of LSG are reviewed. In addition, also the dogmatic topic for the "legal natur of a medical treatment contract" is to reconsider by comparative introducing BGHZ 63, 306. Now in view of the current state of greater popularity of artificial cosmetic surgery still indeed is the sentences: The doctor is minister naturae, a helper of nature. A doctor promises regularly only the proper treatment of the patient, but the contractual liability for work should not be excluded in medical conditions for cosmetic surgeries altogether. "With cosmetic operations, seeking to eliminate the external deformities, the doctor may miss the medical profession entirely." - A. Laufs, Medical Law, 5th ed. P. 18.

• The Korean Society of Law and Medicine
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• v.19 no.1
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• pp.3-20
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• 2018

Pharmacopunture is a new combined method of acupunture and oriental drugs. Recently, this method is widely used to treat traffic accident patients in oriental medicine. However, there is no evidences of treatment, no information of effects and side-effects of this method, and no information of drugs used. In South Korea, western medicine and oriental medicine are regulated differently. When a new technology is invented in the area of western medicine, that method should pass several stages of clinical trials. After that processes, that method can be done as a medical practice. However, in the area of oriental medicine, there is no process like that. According to in South Korea, medical practice without license are composed of two behaviors. First type is that medical practice is done by a person who has no medical license. Second type is that medical practice is done by a person who has a medical license but the area of the license is different. Because of this reason, the distinction between the western medical practices and the oriental medical practices is very important. Medical practices are protected by license mainly because they can harm human life or body. When we invented new medical practice and try to practice it to the patients, we should consider the risk of that method whether it is western medical practice or oriental medical practice. It is not clear that the pharmcopunture which has been done is satisfied the standard of medical treatment.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.75-103
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• 2017

There are three types of benefits in the National Health Insurance Act of Korea. Those are the treatment benefit, statutory uninsured medical benefits and arbitrary uninsured medical benefits. Recently the Korea Supreme Court changed its past legal theory and permitted the arbitrary uninsured medical benefits under the strictly exceptional conditions. According to the Supreme Court's decision, the existence of procedural difficulty, the medical necessity and the patient's consent are necessarily required in order to allow the legal exceptions in arbitrary uninsured medical benefits. Among the three requirements, the doctor's explanation and the patient's fully informed consent are the most important essentials in this legal conflict. The requirement concerning the doctor's explanation and the patient's consent roles like a hole in the ice as a breathing hole in the arbitrary uninsured medical benefits. The most cases dismissed after Supreme Court Decision 2010DU27639, 27646 Decided June 18, 2012. were due to the defect of three requirements.

• The Korean Society of Law and Medicine
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• v.10 no.2
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• pp.85-113
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• 2009

In this paper, the Judgment 2007DA76290 of the Korean Supreme Court was analysed in two points of the legal theory and litigation. The judgment arouses some issues of medical malpractice liability. They includes the concept of the complications and permanent lesion and the difference between them, some problems in a judge's applying the requirements for the physician's tort liability to the medical malpractice situations, the theory of obligation de moyens related with the burden of proof of the negligent conduct for a physician's liability for misperformance of contract, the influence of a patient's physical conditions on the physician's liability, the breach of duty to disclose in selecting the safer one of the treatment methods bringing about the complications or leaving the permanent lesion and so on. In the situations of the case referred to above, the plaintiff should have tried to establish that a reasonable physician in the specific situation of the case would have substituted the safer method of treatment for the method in the case. If the plaintiff had succeeded in establishing it, he or she could have recovered even the physical harm resulting from the permanent lesion brought about by the complications of the specific treatment in the case. The plaintiff failed to do so and recovered only the emotional distress which the patient suffered owing to the physician's breach of the duty to disclose. Therefore the legal malpractice of the counsel might be found in this case.

• The Korean Society of Law and Medicine
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• v.9 no.1
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• pp.413-459
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• 2008

The Law has intervened to define rare circumstances in which a person should choose continuing life in United States. On the one hand, the law has traditionally acted to preservelife and to respect the sanctity of life. On the other hand, one's control over one's own body, and the right to determine what kind of medical care one will receive, is equally well respected and historically grounded. The competent patients have the right to forgo life-sustaining treatment, courts in United States have left many unanswered questions about the nature of that right. The right to choose to forgo life-sustaining treatment is a manifestation of a patient's autonomy interest. In United States, The Karen Quilan case gave rise to legislative activity in the host of state capitals, and several states had adopted statutes that formally recognized some forms of written directives describing some circumstances in which certain kinds of medical care could be terminated. These statues were sometimes dominated 'living will' acts, sometimes 'right to die' acts and ocasionally 'natural death' acts. Today virtually every state has produced a living will statue. In Korea, courts do not permit a terminally ill person to withhold or withdraw life-sustaining treatment. Living wills apply in case of terminal illness owing to a defect in legislation. Now In Korea, these lively dispute of legal policy on the preconditions and concrete procedure of living will act and natural death act. Through the legislation of living will act and natural death act, we should prepare some circumstances to respect patient's autonomy on the right to die. We should frame the cultural standard to make a decision of forgoing life-sustainin1g treatment under the discreet procedure.

• The Journal of the Korea Contents Association
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• v.13 no.12
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• pp.869-879
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• 2013

Modern medicine has not yet conquered behavior therapy for cancer radiation treatment, which is one of the professional groups involved in the justification of the act and reasonable human resources was analyzed. Radiation Oncology(Therapeutic Radiology) installed the role of the medical physicist in the current law, the act must have been within the limits given licenses, but the legitimacy of the act which can be given the current laws and regulations are not clear. Thus, certification and testing outside the medical physicist's research institutions, including the measures to be reflected in national legislation sought. Medical physicists, with the inherent illegality act because one of the areas to precluding the illegality of the content-based "medical law" and "Nuclear Safety Law", "medical technology in the field of radiation safety standards on management" was based on the interpretation. In conclusion, "medical law" and "in the field of medical technology on the management of radiation safety standards" that are consistent with the recognition of qualifications, increased activity in the radiation therapy and radiation safety management must deal with this will be feasible.

• Journal of Society of Preventive Korean Medicine
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• v.27 no.3
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• pp.13-24
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• 2023

Objective : This study was aimed to reassess the scope of practice for medical personnel based on laws. Method : The law specifying the scope of practice for medical personnel has been selected searching Korean Law Information Center(https://www.law.gov.kr). The result was categorized as 'examination, diagnosis, treatment, procedure, prescription, and others'. Results : The laws related to medical procedures were divided into three categories: diagnosis, treatments, and public health and others. In the field of diagnosis, traditional Korean medicine practitioners are generally allowed to play a role. However, some laws specify that only medical doctors can be the primary authorities for diagnosing infectious diseases. In the area of treatments, particularly in emergency medical situations, only medical doctors or nurses are typically mentioned. There are debates in the field of public health and other areas concerning issues such as vaccination, disability diagnosis, and the qualifications for health center directors. A reevaluation is also needed for the Occupational Safety and Health Act, where only medical doctors are set as the personnel standard for workers' health examinations. Conclusion : To safeguard and promote the health of the citizens, there is a need for a clear definition of the licensure and scope of practice for healthcare professionals. Consistent interpretation of conflicting provisions among various laws and clear criteria for the term 'physician' in legal contexts are essential.