의료수준의 개념에 대한 판례의 비판적 고찰

A Critical Review of Judicial Precedents on the Concept of Medical Care Level

Since it is only a repetition of a synonym of regarding medical care level and duty of care as the same, there is no usefulness and the scope of medical care level broadens endlessly. This can only be said as a concept that transmuted from the meaning of medical level in its beginning. In addition, using such term only for malpractice even though there is no similar concept for other negligent acts is not in agreement with the overall theory structure of fault liability. However, since the term medical care level is a concept that is already being used commonly in precedents, medical circles or legal circles, the reality is that it is not easy to substitute this with a different term. Considering such circumstance, the author s opinion is that it would be desirable to use medical level only as medical knowledge or medical level concept, while treating in parallel another grounds of doer s duty of care judgment such as medical environment & condition and special characteristics of medical practice and medical care level to comprehensively consider them to determine whether or not duty of care has been violated. In addition to understanding medical level by reducing it to medical knowledge , the medical level of medical practice conducted by doer should be considered as the standard instead of the medical level of doer when deciding fault. In this sense, specific situation at the time of act becomes an object of deciding fault but it is also different from theory of objectivity in the sense that sphere of social life to which doer belongs is not an object of deciding fault. For example, if a doer drove a vehicle, the doer s act of driving would be enough to decide based on ordinary people working as drivers. Accordingly, if a doer s medical practice is something that can be performed only by specialist, it would be enough to decide medical care level based on the doer s medical practice itself considering specialists in general as it would not be necessary to consider the medical level of the doer.