의약품 부작용에 대한 의사의 설명의무 위반과 법적 책임 - 창원지방법원 2024. 5. 30. 선고 2023노495판결을 중심으로

Doctors' duty to explain side effects of medicines and legal responsibility for violation thereof : Changwon District Court 2024, May 30, 2023, focusing on the judgment of No. 495

The purpose of this paper is to study the judgment of the appeals court of the Changwon District Court, so-called the Macferon Medication Case, from a civil and criminal perspective. This is because the research target judgment has a significant ripple effect at a time when the conflict between the government and the medical community is intensifying in relation to medical policy. In particular, considering that Korea has a significantly higher rate of prosecution and conviction of crimes related to medical practice than foreign countries, the medication in question in this case raises considerable concerns for the medical community concerned about litigation risks. In this case, the punishment imposed on the defendant seems excessive when judging whether the seriousness of the violation of the duty of care and the infringement of legal interests is recognized, whether the medication is unusual, or whether the side effects of the medication are irreversible. In light of the case, if the plaintiff filed a lawsuit for damages, the amount of cited would not have been very large. Considering the characteristics of medical practice that inevitably entails physical invasion for the life and health of the patient, it is necessary to reduce the scope of recognition of causality and shift punishment to fines. Korea's medical care has long become a global medical model with advanced medical systems, excellent medical personnel, and inexpensive and high-quality medical services. The imposition of heavy criminal responsibility for medical practice poses a risk of deteriorating the quality of medical services or malfunctioning of the medical system rather than preventing medical errors. I think it is time to review the level of criminal punishment for medical accidents with the McFerran ruling.