醫師의 說明義務와 患者의 承諾*

Doctors s Obligation of Explantion and Consent of Patients

A doctor, as a professional in medical treatment, should provide proper explanations to the patients and obtain their informed consent on his medical treatment before performing medical services or operations. The doctor should be held liable if he were negligent in his obligation to explain because medical treatment can be viewed as a contractual relationship between a doctor and a patient for the purpose of recovery or operation. At the same time, a doctor s negligence in his obligation to explain can give rise to a tort liability if the doctor had caused damages to the patient as a result of his negligence. A doctor must explain (i) the specific methods of treatment, (ii) matters required for obtaining informed consent or approval from the patient and (iii) financial impact of the treatment. Although there is still some controversy over the exact scope of facts that the doctor must explain, it is generally understood that the “reasonableness standard should be used - i.e., the patient should be provided with sufficient factual explanations that a reasonable doctor should have provided to obtain informed consent. In termi of burden of proof, the doctor would have a burden of proof if the doctor s liability for his negligence to explain is a contractual liability, while the patient would have the burden of proof if the liability is a tort liability. Here, the most important issue for the patient is how the patient can prove the doctor s breach of his obligation to explain. Usually, proving the doctor s breach of his obligation to explain is difficult as a matter of fact. Therefore, I would like to suggest a new approach that can reduce the patient s burden of proof in tort cases. I would like to suggest a step-by-step method in reviewing the doctor s breach of his obligation to explain. First, the patient should prove that he had lost the opportunity to choose whether to be treated and how he would like to be treated as a result of not being provided with sufficient information from his doctor. Next, the patient should prove the doctor s breach of his obligation to explain, any and all damages which arose from such breach and the causation between the breach and damages in case of seeking monetary damages (together with any compensation for mental suffering), if the breach of the obligation to explain corresponds to the doctor s general negligence.