醫療組織 過失에 관한 硏究

A Study of Medical Organizational Faults

Medical practices are becoming increasingly complex owing to rapid developments in medicine and technologies. The importance of medical facilities and work environments are now recognized by medical persons. Hospitals must organize highly professional teams in order to provide patients with the best medical services possible. In the past, medical doctors had the power to select team members and supervise them, but their authority has become more and more circumscribed in recent times. Medical accidents that have generally occurred due to the errors of medical personnel such as doctors and nurses, have occasionally been prompted by poor organization at hospitals. In legal cases of the latter type, Article 35 or 756 of the Korean Civil Code concerning vicarious liability or corporate liability has been applied. If medical personnel were not deemed to be at fault, then hospitals were not charged with any liability. Hence, it is necessary to develop a new concept concerning fault that can incorporate fault on the part of organizations to solve these problems. However, it is not a simple matter to recognize an organizational fault. The concent of fault could be objectified excessively, making malpractice more strict, which is not in correspondence with the liability with fault principle. It is difficult for plaintiffs to prove the causations between an organizational fault and patients’ damages using the concept of factual causation. The presumption of causation may be required to recognize the causation of organizational fault. It might be argued that organizational fault would make hospitals’ liabilities unduly burdensome. I also think that an organizational liabilities should be limited to an appropriate level. Hospitals should have duties associated with their organization, which is not best but least on the level of normative medical custom or lege artis. I suggest organizational fault as a new concept of fault is a useful tool for medical liability. It represents not only a means to protect patients’ rights, but also for providing hospitals with an incentive to organize effectively and to do their best to prevent medical accidents.