생체장기이식과 의료과오법리

Legal Principle of Medical Fault on the Organ Transplant of Living Body

In general, there should be the tripartite relationship including a donor, a recipient, and a doctor to fulfil the organ transplant, in this case, it is widely accepted that the donor could not demand the direct damage from the doctor over the medical fault caused the failure of transplant operation, because the donor is not the direct contract parties to the medical contract on the transplant operation. However, if the organ transplant operation is regarded as the articulated relationship of three parties including a donor, a recipient, and a doctor, it is necessary to protect the donor's profit of trust on the transplant operation called the expectant profit. Thus, especially, the donor of living body organ could demand the damage from the doctor over the failure of transplant operation, in this case, the legal principle admitting that the donor could demand the damage happens from the native profit of the donor, not from the Civil Law Clause 752. In addition, the legal character could be admitted as donation on the organ offering behaviour, however the donations by a third person except family are judged as general donations and then it would be solved as general medical fault problems, but the donation by family or close relationship could be a bit different, in this case, the doctor has responsibility to the end of transplant operation, ultimate aim of contract, on the assumption of donation although the transplant operation has been finished, and furthermore, the doctor has obligation to do medical behaviour which is appropriate to medical lege artis.