受診機會喪失論 - 일본의 판례 및 학설 발전으로부터의 시사 -

“Theory of Loss of Chance” in Medical Malpractice Litigation

It has been long discussed as to whether the merit of the loss of chance should be recognized in the medical malpractice litigation.This Paper reviews the development of loss of chance and the related cases, especially in Korea and Japan. The results are as followings ; (1) The theory of loss of chance is not confined to the causation.Since the medical malpractice litigation is concerned with scientific evidences, it makes it more difficult to determine the negligence of doctors and causation between the negligence and injury. Therefore, the theory of loss of chance is an attempt to overcome the obstacles to these negligence and causation. (2) The theory of loss of chance is one of the attempts to loosen the burden of proof and expand the legal function of consolation money. That is, the Supreme Court in Korea has put the ‘passive burden of proof’ on the aggrieved patients. Also, the adjusting and punitive function of the consolation money has been recently reinforced. These trends provide the better environment to establish the theory of loss of chance. (3) The biggest problem in the theory of loss of chance is whether the right to proper medical practice can be established as cause of action. The theory of loss of chance does not result from the doctors’ medical obligation but from the negligence of general medical practices such as their examination, diagnosis, treatment or operation which can not be easily identified, or are difficult to prove the causation between the negligence and injury. Therefore, since the legal basis to settle down the theory of loss of chance has been matured, its future development is notable.