• The Korean Society of Law and Medicine
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• v.15 no.2
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• pp.3-29
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• 2014

The Supreme Court made a decision that the doctor cannot be punished for not taking a blood transfusion to the patient, depending on the patient's will to refuse the blood transfusion on June 24, 2014. The reason is that, in a special situation of conflict between the right of patients to self-determination and the duty of care, and when it was impossible to compare whether which has the superior value, if the doctor made a medical practice to respect either of those two values according to the professional sense, he cannot be punished. In principle, the doctor should make medical practices according to the patient's will. However, if the patient's life was at stake, I think, the doctor is obliged to try his best to save the life of patient. Yet to entrust the patient's life to the doctors professional sense, is to give up the obligation of the country to protect lives. In this regard, I think that the Supreme Court Decision should be reviewed, and that an ongoing research is needed.

• The Korean Society of Law and Medicine
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• v.15 no.1
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• pp.211-237
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• 2014

Because of unpredictability and high possibility of abnormal results by clinical trials compared to general medical behaviors, a procedure for ensuring with sufficient explanations by investigators must be secured. Therefore, in a sequence of clinical trials, what kinds of scope, stage, and method of explanations provided by investigators, including doctors or researchers, to trial subjects are closely related to the compensation for damages by violation of liability for explanation. In case of application of clinical trials to patients who have critical illness such as cancer, issues of "Quality of Life" regarding trial subjects, cancer patients, should be discussed. Especially, in case of clinical trials for terminal cancer patients, the right of subjects' self-determination, which is a fundamental principle in medical behaviors, should be discussed. The right of self-determination includes participation in clinical trials for the possibility of life-sustaining even a little bit, or no participation in clinical trials in order to have a time for completing the rest of his life. Like this, if the extent and scope of explanations related to the issues of "Quality of Life" are raised as main issues, the evaluation of "Quality of Life", should be a prerequisite. In many occasions, realistically, despite bad results such as deaths or serious adverse drug reactions after clinical trials, it may not be easy for compensating to trial subjects or their survivors, who requested civil compensation for damage. Futhermore, in abnormal results after concealment of clinical trials or performance of clinical trials without permission, and in the case of trial subjects' failures of proving proximate cause between the clinical trials and abnormal results, problematic results such as no protection to the trial subjects could be occurred. In performing clinical trials, investigators should provide sufficient explanations for trial subjects and secure voluntary informed consents from the trial subjects. Therefore, clinical trials without trial subjects' permissions and the informed consent process violate trial subjects' rights of self-determination, and the investigators shall be liable for compensation for damages. Then, issues might be addressed are what are essential contents of patients' "rights of self-determination" infringed by clinical trials without subjects' permissions. Two perspectives about patients' rights of self-determination might be considered. One perspective regards physical distress of patients (subjects) from therapies without sufficient explanations as the crux of the matter. The other perspective regards infringement of human dignity caused by being subjects without permission as the crux of the matter irrespective of risks' big and small influences. This research follows perspective of the latter. Forming constant fiduciary relation between investigators (doctors) and subjects (patients) pursuant medical contracts, and in accordance with this fiduciary relation, subjects, who are patients, have expectations of explanations and treatments by the best ways. If doctors and patients set this forth as a premise, doctors should assume civil liability when doctors infringe patients' expectations.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.3-26
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• 2015

Recently, Practicing of ghost surgery and duty of informed consent of doctors have become a big issue in the medical dispute and lawsuits. The ground of admitting the informed consent and the agreement(self-determination of patients) can be based on the dignity of man and the right to pursue his happiness guaranteed under Article 10 of the constitution in theory. However there are no explicit legal regulations on the duty of the informed consent and there is no substantive legal enactment on the informed consent, but there is a collision between self-determination of patients and the discretionary power of doctors. If the discretionary power on the duty of the informed consent was extended it may result in the infringement of the right of surgical patients, so called arbitrary medical treatment. Relating to this issue, New Jersey Supreme Court held that a patient has the right to determine not only whether surgery is to be performed on him, but also who shall perform it. Moreover it held that a surgeon who operates without the patient's consent engages in the unauthorized touching of another and, thus, commits a battery'. But there are no ghost surgery cases adopting battery theory in Korea, and professional negligence has been considered rather than the battery, regarding an absence of hostile intent to injure patient. Supreme Court of Korea held that a doctor who operates a medical procedure without the patient's valid prior consent based on wrong diagnosis commits professional negligence resulting in injury, and the patient's invalid consent do not preclude wrongfulness'. However, if a health care provider conducts a completely non-consensual treatment or substitute surgeon without consent, the action should be plead in battery, not negligence, but if a health care provider violate his duty of care in obtaining the consent of the patient by failing to disclosure all relevant information (risks) that a reasonable person would deem significant in making a decision to have the procedure, the action should be plead in negligence, not battery. Therefore, the scope of patients' self-determination can be protected by stating clearly the scope of the duty of the informed consent and the exemption of the informed consent legislatively, it is considered that it is valid to legislate the limitation of the discretionary power.

• The Korean Society of Law and Medicine
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• v.9 no.2
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• pp.53-75
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• 2008

The end of life problem in the United States has been evolved from the development of concept of brain death over last 50 yr. The invention of ventilator and the development of emergency medicine also played a key role to elongate the end stage of life and which caused the American people to ask a question about the patients self determination and refusing the unwarranted medical treatment in the view of the death with dignity. With regard to the patient unable to self determination, surrogate decision was also considered. To guarantee the self determination, The patient self determination act also enacted on the level of Federal regulation in 1990s. But no law has effectively dealt with the situation when medical treatment became futile. Along with the significant debates on literature and court cases. The American Medical Association's Council on Medical and Judical Affairs presented formal opinion and the Texas was the first states to regulate the medical futile situation in 1999. Even though that definition was in controversy, the concept of medical futility mainly focused on the doctors' right to refuse the treatment.

• 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 Academy of Nursing
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• v.24 no.2
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• pp.190-205
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• 1994

Respect for human life and respect for human dignity are two basic values to which organized nursing has urged its members to adhere in their service to mankind. Thus it is the nurses’ duty to provide health care in support of sustenance of life and to pay respect for the patient’s right to dignity. In practice, however, nurses may experience dilemmas between these duties much due to the de velopment of modern advanced techniques. These dilemmas have become more complex and difficult to resolve. Nurses are often faced with situations in which the terminally ill refuse professional care, posing serious conflicts between respect for human life and respect for human rights to self-determination. In such cases, resolution of the problem is not a simple matter, thus requires intensive study into the ethical questions related to the situation. The purpose of this study was to identify ethical problems that nurses experience in caring for terminally ill patients and explore the ways to the resolution of problems within the context of the situations. The methodology used for the study was a case study method which ‘New Casuistry’ proposed by Jonsen & Toulmin(1988) and the ‘Specified Principlism’ proposed by Degrazia(1992) as an alternative to old deductive and intuitive method. Cases were developed through semistructured indepth interviews according to the casutistry method. A total of seven nurses were interviewd who were caring for therminally ill patients. Four cases out of a total 14 cases were related to the topic. Through the case analysis it became evident that nurses appreciated other values more often than respect for the patient’s right to self-determination. These other values were convenience and efficiency in nursing practice in case 1, preservation of life above all other values in case 2, provision of nursing care to fulfill the nurse’s professional obligation at most in case 3, and respect for the family’s demand against the patient’s wish in case 4. This study showed that the most important ethical problems were conflict between respect for the patient’s right to self-determination and sustenance of life for the fulfillment of professional obligation. For this problem, benefit /burden analysis from the perspective of the patient and family for the promotion of patient’s wellbeing may be a way to resolve the conflict. Further, through these analysis it was shown that physicians’ and families’ opinions dominated in the decision - making and the opinions of nurses’ and patients’ tended not to be reflected. Thus the patient's right to his or her care was not readily respected. To solve this problem. nurses should make efforts to communicate reciprocally with their patients, family members and physicians in an effort to respect for their patient’s rights to life and diginity from the point of view and values of the patient. It is also important that nurses provide good basic nursing care up to the time of death regardless of decisions about providing or not aggressive treat-ment for chronically and terminally ill patients.

• 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.18 no.2
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• pp.105-138
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• 2017

This is case comments of several representative legal cases regarding self- determination right of patient. In a case in which an intoxicated patient attempted suicide refusing treatment, the Supreme Court ruled that the medical team's respect for the patient's decision was an act of malpractice, and that in particular medical situations (medical emergencies) the physician's duty to preserve life supersedes the patient's rights to autonomy. Afterwards, at the request of the patient's family, and considering the patient's condition (irrecoverable death stage, etc.) consistent with a persistent vegetative state, the Supreme Court deduced the patient's intention and decide to withdraw life-sustaining treatment. More recently, regarding patients who refuse blood transfusions or other necessary treatment due to religious beliefs, the Supreme Court established a standard of judgment that can be seen as conferring equal value to the physician's duty to respect patient autonomy and to preserve life. An empirical study of legal precedent with regard to cases in which the physician's duty to preserve life conflicts with the patient's autonomy, grounded in respect for human dignity, can reveal how the Court's perspective has reflected the role of the patient as a decision-making subject and ways of respecting autonomy in Korean society, and how the Court's stance has changed alongside changing societal beliefs. The Court has shifted from judging the right to life as the foremost value and prioritizing this over the patient's autonomy, to beginning to at least consider the patient's formally stated or deducible wishes when withholding or withdrawing treatment, and to considering exercises of self determination right based on religious belief or certain other justifications with informed refusal. This will have a substantial impact on medical community going forward, and provide implicit and explicit guidance for physicians who are practicing medicine within this environment.

• Journal of Families and Better Life
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• v.21 no.1
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• pp.73-89
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• 2003

The goal of this study was to estimate the knowledge on the patient about treating and attitude about their right to know and how they practice. That is the study seek to find how much they claim about their right to know and how they evaluate it. Additionally describe how much the patient carry on their right to know and find out that of each level's associations. This main Purpose of the study was to increase patient's right to know during in medical services. Socio-demographic variables, personal service variables and other used variables which levels of consumers knowledge, demand, evaluation and about right to know on practice level were analyzed statistically. For this purpose, the subjects of this study were consumers who had experienced medical services. The survey was conducted on 551 Korean aged in off-line by self-administered questionnaires. Final analyzed sample sizes are 551. The regression, ANOVA, t-test and other descriptive analyses were used. The obtained results were as When the consumers were estimated the level of Knowledge, the degree of respondent's level was middle state. The level of demand showed low tendency but their practice level was relatively high. On the other hand, consumer's demand for the patient's right to know was very high. The level of knowledge, demand, evaluation have affected positively to the level of consumers practices. Based on empirical research, the statistics of consumers' knowledge level was significant to other variables and effecting highly. It was recommended consumer education should be provided effectively to increase protecting their right.

• Journal of Hospice and Palliative Care
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• v.26 no.2
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• pp.95-100
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• 2023

With the implementation of Act on Hospice and Palliative Care and Decisions on Life-Sustaining Treatment for Patients at the End of Life, interests of the general public on self-determination right and dignified death of patients have increased markedly in Korea. However, "self-determination" on medical care is misunderstood as decision not to sustain life, and "dignified death" as terminating life before suffering from disease in terminal stage. This belief leads that physician-assisted suicide should be accommodated is being proliferated widely in the society even without accepting euthanasia. Artificially terminating the life of a human is an unethical act even though there is any rational or motivation by the person requesting euthanasia, and there is agreement thereof has been reached while there are overseas countries that allow euthanasia. Given the fact that the essence of medical care is to enable the human to live their lives in greater comfort by enhancing their health throughout their lives, physician-assisted suicide should be deemed as one of the means of euthanasia, not as a means of dignified death. Accordingly, institutional organization and improvement of the quality of hospice palliative care to assist the patients suffering from terminal stage or intractable diseases in putting their lives in order and to more comfortably accept the end of life physically, mentally, socially, psychologically and spiritually need to be implemented first to ensure their dignified death.