• The Korean Society of Law and Medicine
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• v.7 no.2
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• pp.113-136
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• 2006

In recent years, as well as the other countries, medical dispute cases increase continuously in China. one of the reason that medical cases increase rapidly like this is after reformation and opening people's sense of independence, law and right come to be high, but a theoretical study about medical malpractice liability is insufficient and there is deficiency at legislation from 1986 civil law general rule is carried out in Chinese. but it is difficulty to deal with those more and more complicated medical dispute only according to the law above. so in 2001 The Chinese Supreme Court established the judicial construction about civil litigation evidence which regulated the shift of the burden of proof of medical malpractice and the relation of cause and effect from the plaintiffs to the defendants. in 2002 the State Council made out Incident of Malpractice Processing Rule. but many scholar pointed out the problem in it. on the other side, according to Chinese Contract Law parties could choose contractual or tort liability to prosecute. but because of the judicial construction above majority of people asked tort liability. of course there are some cases asking contractual liability. then this paper aim at analysis of the Chinese medical malpractice liability, especially of the problems about the subject of responsibility, burden of proof and scope of responsibility.

• Journal of radiological science and technology
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• v.18 no.2
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• pp.103-117
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• 1995

Recently the suits for medical malpractice are gradually increasing in this country. The main purpose of this study is to excavate the most suitable theories about civil liabilities on medical malpractice by radiological technologist. To solve the above-mentioned problems in medical malpractice, I have proceeded to make a survey of traditional theories and tried to exvacate the most suitable theories for our medical circumstances among those theories. Both domestic and foreign relevant professional literatures and legal cases were investigated in this study. Several important findings of this study are as follows. First, the nature of legal interrelationship between radiological technologist and physician(or the representative of a hospital) is to define the content of employment. But in the eye of medical law, the interrelationship between radiological technologist and physician is written that radiological technologist should be directed by physician. Second, the nature of legal interrlationship between patient and physician(or the representative of a hospital) is to define the content of legal obligation of physician(or the representative of a hospital), and radiological technoligst execute his obligation as proxy for physician. Therefore, patient can not clame any legal right to radiological technologist. Third, radiological technologist has the obligation of Due Care in medical practice. Fourth, on the medical malpractice by radiological technologist the civil liability can be treated as either tortious liability or contractual liability, and physician(or the representative of hospital) take the responsibility for the damage compensation. In this case, physician has the right of indemnity to radiological technologist. But it should be dinied or extremely limited.

• The Korean Society of Law and Medicine
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• v.13 no.1
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• pp.295-329
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• 2012

A medical malpractice case requires special legal protection, considering its characteristics, such as seriousness and long term effects of its damages, medical information asymmetry between practitioners and patients, and difficulties in realization of liability. Taking the points above into consideration, Medical Malpractice Arbitration Act of 2012(MAA) has legislative intent to protect the rights of the injured from medical malpractice, while protecting the stability of medical practice by providing arbitration as an alternative dispute resolution. However, constitutional review is required for one new scheme of compensation for medical injuries during delivery, which is implemented in MAA of 2012, especially with regard to freedom to exercise occupation, property, equality under the Constitution. Two important aspects are 1. according to the law, absolute liability applies to compensation for damages during delivery without negligence of practitioners; and 2. the practitioner bears some portion of the cost, 30% in the law above. This article aims to analyze this new institution in various aspects of the Constitution, and, as a result, it does not comply with constitutional criteria.

• Journal of Korean Academy of Nursing Administration
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• v.17 no.1
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• pp.33-43
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• 2011

Purpose: This study was done to develop a web-based diagnostic evaluation program for nurses to prevent malpractice liability. Methods: A comprehensive review of the literature and 9 specialist interviews were used to search for learning goals and content for protection for nurses from malpractice. Data on needs for learning goals were collected from 56 hospital nurses who agreed to complete a self-report questionnaire. The diagnostic program was evaluated between September 2008 and August 2009 by 35 new hospital nurses using an application of the web-based program evaluation tools by Chung (2000). Results: A comprehensive review of the literature and interviews were used to search for learning goals and content. The evaluation program was composed of the 73 questions for diagnostic evaluation under 23 learning goals and 6 grand learning goals which included the principles of law, patient's rights, legal responsibility, patient's safety, regulation on nursing practice and patient's rights protection. Evaluation of the program showed that the mean for program evaluation was 3.43 (SD=.37). Conclusion: This diagnostic evaluation program could be an efficient method for teachers and learners to improve nurses' behavior in protecting the patient's rights and preventing malpractice claims.

• 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.17 no.2
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• pp.57-81
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• 2016

It can determine the outcome of the lawsuit whether or not there is a causality between the medical malpractice of a physician and the patient's injury when the patient is filing a lawsuit against the physician in order to pursue civil liability for a medical accident. In medical malpractice lawsuits, it is not easy to judge causality between different civil cases because of the special nature of medical care. Also, information such as medical records is concentrated on doctors and the medical knowledge of the patient is relatively insufficient compared with the doctor. Therefore, it is recognized through medical malpractice lawsuits that the burden of proof of the causality burdened by the plaintiff patient is relaxed. In this paper, I examine the legal theory on how to recognize causality in medical civil liability and then concern the attitude of the case in Korea, which is divided into the types of the causality - such as the case of general medical practice, explanation duty, no causality with medical malpractice.

• The Korean Society of Law and Medicine
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• v.7 no.1
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• pp.323-386
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• 2006

A combination of information technology and medical care has given rise to a new type of medicine, i.e., telemedicine. Broadly defined, telemedicine is the transfer of electronic medical data from one location to another. Both at home and abroad, telemedicine has come to success in establishing appropriate equipment and solutions for such non-conventional medicine. Sooner or later, telemedicine is believed to find itself as one of the universal treatments. In order to facilitate the full-fledged development of telemedicine, a number of legal and institutional problems have to be settled. In Korea, the Medical Act was amended to include such provisions as telemedicine, electronic medical records, electronic prescriptions, etc. and the Act came into force on March 31, 2002. Telemedicine is in common with the conventional medicine in that a physician treats a patient. However, telemedicine is basically differentiated in the followings: - The offer and acceptance of treatment and medication are usually made on-line; - Telemedicine is inherently dangerous because a physician cannot meet face-to-face with a patient; and - Joint and several liability is borne by all the physicians involved in a telemedical consultation. As a result, telemedicine is vulnerable in nature to medical malpractice. Accordingly, there must be some new theories and arguments in the formation of contract and torts. The discussion on the civil liability covers the above-mentioned issues, and would give an insight or guidelines in the concerted operation of provisions with respect to telemedicine. This study delves into the civil liability of physicians involved in telemedical consultations and treatments based upon the conventional malpractice theory.

• 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.

• Journal of Korean Library and Information Science Society
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• v.33 no.4
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• pp.179-207
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• 2002

This study outlined the malpractice of information professionals. including librarians and information brokers, providing inaccurate and insufficient information to the users, which was derived from the lack of reasonable care in the performance of professional duties and caused actual damage to the users. The author analysed the essential requirements for the charge of information malpractice and suggested the method of safeguard against it.

• Health Policy and Management
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• v.1 no.1
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• pp.72-94
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• 1991

The number of disputes between physicians and patients caused by medical malpractice are showing a sharp increasing over the past several years. The disputes on medical malpractice may be resolved either in court or by direct negotiation between both sides concerned. There are no special acts relating to the civil or penal liability of the physicians in Korea. The medical disputes are decided merely through legal technicalities and without reference to actual medical practice. The current system which does not compensate injured patients adequately or equitably leads to taking a long time consuming for dispute resolution processes. The things make worsed, the problem is due to not being of insurance system or a proper funds for compensation. This research proposes a outline of new and comprehensive alternative for these problems and failure of conventional resolution of medical disputes. So far, we have learned lessons from the excperiencies of resolving medical malpractice disputes of Japan and the United States. The proposal first calls for an administrative arbitration and pretrial screening panels as a condition precedent to trial. The proposal also includes to facilitate with the funds for compensating the injured.