• Health Policy and Management
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• v.22 no.3
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• pp.315-346
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• 2012

The legal relationship between patient and physician is legally equal relationship. But, in times past, patients be compelled to sign an unequal contract, substantially. Because of the imbalance between supply and demand in the health care market. Today, the law of supply and demand in the health care market is running well. And as the cognition of citizens' rights grows, the relationship between patient and physician can also get a lot of changes. Patients have the right to know the information about medical care, and to decide whether or not to get treatment including invasions against their own bodies. In other words, Doctors have an obligation to explain to their patients. If doctors did not provide patients sufficient explanation or information, it violates the right of patients. This is a tort, or a breach of contract. To improve the remedy for violation of patient's right, patient is able to be protected by status as consumer. If patient is a kind of consumer in terms of medical consumption, he/she as consumer can enjoy supplementally the consumer's right. The patient as a consumer can exercise now a consumer's right as a constitutional right. In addition, with respect to consumer's rights, Framework Act on Consumers was enacted. This Act is based on constitutional provisions of Article 124 and the Act can be seen as a law that embodies consumer right because the provision of the constitutional law delegates specific contents. In the health care field, patients need to win recognition the statue of the consumer to hold the sovereignty of the consumer. In particular, if patients are consumers, they may be able to make good use of the quickly and efficiently collective dispute resolution and association lawsuit to rescue their damage, the Alternative Dispute Resolution(ADR) of Framework Act on Consumers.

• 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.

• Korean Journal of Human Ecology
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• v.15 no.4
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• pp.691-701
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• 2006

The purpose of this study is to find out a way to apply the strength of American homeowners association to Korean housing management system through literature review on the legal basis, organizational composition and functions, and management models of homeowners association. Following is distinctive characteristics of American homeowners association. 1) Homeowners association is a juridical entity which 'Condominium Act' obliges residents to join. 2) The board of directors is decision maker. The covenant, however, gives residents right to act in committees. 3) Homeowners association has self-governing functions such as management of common spaces, permission of new construction and taxation. 4) Types of management are volunteers' self-management, association-employed management, full agency management, and some mixed types. Residents pay management charge by month or by quarter. This study suggests as follow. 1) It is needed for Korea to legislate the law to regulate the management system of detached houses. 2)Management system of Korea can be more efficient with volunteers' committees for active participation. Above all, architectural control committee is essential in the circumstance that reform of apartment is popular these days. 3) The management entity is recommended to have some self-governing function to talk about taxation policy with local governments.

• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.145-173
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• 2016

A patient's Right to Self-Determination or his/her Right of Autonomy in the Republic of Korea has traditionally been understood as being composed of two elements. The first, is the patient's Right to Know as it pertains to the physician's Duty to Report [the Medical Situation] to the patient; the second, is the patient's Right to Consent and Right of Refusal as it pertains to the physician's Duty to Inform [for Patient's Consent]. The legal and ethical positions pertaining to the patient's autonomous decision, particularly those in the interest of the patient's not wanting to know about his/her own body or medical condition, were therefore acknowledged as passively expressed entities borne from the patient's forfeiture of the Right to Know and Right to Consent, and exempting the physician from the Duty to Inform. The potential risk of adverse effects rising as a result of applying the Informed Consent Dogma to situations described above were only passively recognized, seen merely as a preclusion of the Informed Consent Dogma or a denial of liability on part of the physician. In short, the legal measures that guarantee a patient's 'Wish for Ignorance' are not currently being understood and acknowledged under the active positions of the patient's 'Right Not to Know' and the physician's 'Duty to Consideration' (such as the duty not to inform). Practical and theoretical issues arise absent the recognition of these active positions of the involved parties. The question of normative evaluation of cases where a sizable amount of harm has come up on the patient as a result of the physician explaining to or informing the patient of his/her medical condition despite the patient previously waiving the Right to Consent or exempting the physician from the Duty to Inform, is one that is yet to be addressed; that of ascertaining direct evidence/legal basis that can cement legality to situations where the physician foregoes the informing process under consideration that doing so may cause harm to the patient, is another. Therefore it is the position of this paper that the Right [Not to Know] and the Duty [to Consideration] play critical roles both in meeting the legal normative requirements pertaining to the enrichment of the patient's Right to Self-Determination and the prevention of adverse effects as it pertains to the provision of [unwanted] medical information.

• Journal of Korean Home Economics Education Association
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• v.9 no.1
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• pp.179-191
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• 1997

The purpose of this study is to analyze the state of father’s role performance and self-esteem of adolescents, to investigate the relation between the father’s role performances recognized by adolescents and the self-esteem of adolescents, and to present the basic data for showing the importance of father’s role in increasing the adolescents’self-esteem. The subject of this survey was 795 male and female students of the second grade in Kwangju middle and high schools. The questionnaire was used for this study as a means of measuring. The results of this study were as follows：1. The degrees of father’s role performances were considered ‘82.19 points’out of 125 by adolescents but rather high by the female students, it didn’t have any significant difference between the male students and female. 2. The degrees of adolescents’ self-esteem were ‘51.17 points’out of 85 on the whole. But specifically, the degrees of adolescents’self-esteem of the male students were higher than those of the female students. This self-esteem of adolescents caused significant differences in the right to the decision-making and the father’s occupation only. 3. The influence of father’s role performances on the adolescents’self-esteem was found very high, and more influence were showed by the female students than by the male students. 4. The order in the effective poser of variables on the adolescents’self-esteem was as following； the role in command and harmony, the sex, the economic role, the role in intellectual ability development. In conclusion, father’s role performance were found to be important variables on the conform adolescents’self-esteem.

• Development and Reproduction
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• v.14 no.2
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• pp.143-154
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• 2010

This article analyzes two leading Korean cases which led to opposite conclusions: the Boramae Hospital Case (Korean Supreme Court 2002 Do 995) and the Shinchon Severance Hospital Case (Korean Supreme Court 2009 Da 17471). In doing so, it pays particular attention to the acceptance, modification, and rejection of paternalism, specifically 'physician paternalism' and 'familial paternalism', both of which have long and strongly influenced the Korean medical environment. In Boramae Hospital, the Court emphasized the obligation of the physician in terms of the life of the patient (eg: protecting and preserving the life and welfare of the patient). Its position seemed to be based on the traditional physician paternalism which presupposes the ability of physicians to identify right and wrong choices according to natural laws. However, the Court saw itself as the final arbiter of who identifies and determines the real world content and consequences of that natural law. In short, the Court elevated itself to the supreme guardian of the patient, and held that its decision cannot be overruled by that of the patient's family. So without specifically referring to the importance of the family and the role of familial decisions, both long-observed traditions in medical decision-making in Korea, the Court shifted away from familial paternalism. In Shinchon Severance Hospital, the Court explained the meaning of the patient's powers of self-rulemore concretely, explaining its scope and substance in greater detail. The Court held that one can exercise the right of self-rule, even over issues such as death, in the form of 'previous medical directions'. However, this case does not represent a wholesale acceptance of medical autonomy (ie: it does not accept self-rule unconditionally). Rather, the Court accepted the importance of the opinions and decision of physicians and of the Hospital Ethics Commission, and the Court still retained to itself the authority to review and make alterations to 'material' decision. The Court did not overlook the importance of the decision of the patient's family, but it also did not relinquish its status as supreme guardian, emphasizing the 'objective' nature of a decision from the court.

• 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.

• Journal of Korean Academy of Nursing Administration
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• v.15 no.1
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• pp.81-90
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• 2009

Purpose: The purpose of this study was to identify nurses' perceptions on the older adult's dignity, and identify the risk factors that threaten older adult dignity and nurses' experiences of ethically difficult care in nursing homes. Method: Qualitative content analysis was done using an analysis scheme developed by the investigators. The data were collected from 51 nurses in 10 different nursing homes, who have agreed this study. Using a self-completion questionnaire was developed by the authors. The questionnaire which consisted of 3 items about dignity definitions, risk factors, and experiences on ethical dilemma. Results: The scheme consisted of 14 categories and 33 subcategories of the 261 significant statements. The categories of the dignity perception analyzed were respect, social right and equality. The categories of risk factors analyzed were loss of control, abuse, physical restraint, invasion of privacy, decision limitation and staff qualification. The categories of dignity experiences were abuse, physical restraint, invasion of privacy, staff qualification and decision limitation. Conclusions: This study may suggests interpretation for compromised older adult's dignity and provides data to use in the development of the useful guidelines and educational programs for the nurses in nursing homes.

• Journal of Korean Academy of Nursing
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• v.51 no.1
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• pp.15-26
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• 2021

Purpose: This study aimed to distinguish and describe the types of perceptions of do not resuscitate (DNR) proxy decisions among families of elderly patients in a long-term care facility. Methods: This exploratory study applied Q-methodology, which focuses on individual subjectivity. Thirty-four Q-statements were selected from 130 Q-populations formed based on the results of in-depth interviews and literature reviews. The P-samples were 34 families of elderly patients in a long-term care hospital in Busan, Korea. They categorized the Q-statements using a 9-point scale. Using the PC-QUANL program, factor analysis was performed with the P-samples along an axis. Results: The families' perceptions of the DNR proxy decision were categorized into three types. Type I, rational acceptance, valued consensus among family members based on comprehensive support from medical staff. Type II, psychological burden, involved hesitance in making a DNR proxy decision because of negative emotions and psychological conflict. Type III, discreet decisions, valued the patients' right to self-determination and desire for a legitimate proxy decision. Type I included 18 participants, which was the most common type, and types II and III each included eight participants. Conclusion: Families' perceptions of DNR proxy decisions vary, requiring tailored care and intervention. We suggest developing and providing interventions that may psychologically support families.

• The Korean Society of Law and Medicine
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• v.23 no.1
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• pp.37-80
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• 2022

By analyzing informed consent and the refusal of emergency medical treatment (called patient dumping) under the current Emergency Medical Service Act, this study suggests that an emergency medical professional is only liable for patient dumping if their duty to protect the patient's life takes precedence over the patient's right to self-determination. In emergency medical situations, as in general medical situations, medical treatment should be performed after the emergency medical professional informs the patient about the medical treatment, including its necessity and methods, and obtains consent from the patient. Refusing or evading the performance of emergency medical services on the excuse of the informed consent not considering a waiver or alteration of informed consent requirements without reasonable reasons violates the Emergency Medical Service Act and thus makes an emergency medical professional liable to administrative disposition or criminal penalty. In other words, depending on the existence of a waiver of alteration of the informed consent, patient dumping may be established. If the patient is a minor or has no decision-making ability, and their legal representative makes a decision against the patient's medical interests, the opinion of the legal representative is not unconditionally respected. A minor also has the right to decide over their body, and the decisions of their legal representatives should be in the patient's best interests. If the patient refuses treatment, in principle, the obligation of life protection of emergency medical professionals is the top priority. However, making these decisions in the aforementioned situations in the emergency medical field is difficult because of the absence of explicit regulations regarding these exceptional problems. This study aims to organize the following precedents of the Supreme Court of Korea. The court states that, when balancing the conflicting interests between the duty to provide emergency medical service and the duty to inform is unavoidable for emergency medical professionals, they should put the duty to protect the patient's life ahead of the duty to inform if the patient's life matters. Exceptionally, when a patient has seriously considered whether they should receive treatment before the emergency medical situation, their right to self-determination can be considered equal to the obligation of emergency medical professionals to provide emergency medical treatment. This research also suggests that an amendment of the Emergency Medical Service Act should include the following. First, the criteria for determining the decision-making ability of emergency patients should consist of medical content. Second, additional consent from a medical professional is unnecessary for first-aid treatment. Finally, new provisions for emergency medical obligations for minors, new provisions for the decision standard when there are conflicting opinions about the treatment of a patient, and new penalty provisions for professionals who suspend emergency medical examinations and treatments need to be established.