• The Korean Society of Law and Medicine
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• v.19 no.1
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• pp.143-163
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• 2018

Implant procedure belongs to so called a commercialized medical treatment, its procedure is simple and clear, and the possibility of success is almost 100%. In addition, it is a selective method rather than an inevitable method for a patient's health, so the importance of liability for explanation is especially emphasized for protection of autonomous decisions by patients. Considering these characteristics, the plaintiff in the relevant case said that the contract of implant procedure has the characteristic of subcontract, and only the failure of implant itself and the violation of liability for explanation should be the defendant's fault liability. In addition, although the above procedure contract is considered as delegation rather than subcontract, whether it's the defendant's malpractice should be judged by general people's common sense rather than average people in the industry. Therefore, if all the implanted teeth were removed due to bleeding and pains, and the patient suffered from dysaesthesia during the process, the defendant's malpractice is fully proved. When the judgements of implant medical malpractice were researched, the court doesn't consider implant contract as subcontract, but it judges dentist's malpractice by whether the implant itself is successful, so it seems that the court acknowledges similar characteristics with subcontract whose purpose is completion of work to some degree. In addition, considering the detailed contents of presented medical malpractices, it seems that judging medical malpractice is based on the common sense of general people. Therefore, the argument of the plaintiff is valid when the fact the adjustment amount is relevant to the amount that the plaintiff initially claimed is considered even though the relevant case was decided to be compulsory mediation.

• 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.