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KCI우수등재 학술저널

의료과오에 관한 판례의 동향

The Trend of Supreme Court s decisions on the medical malpractice

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The medical malpractice action is disadvantageous to the plaintiff as it involves special medical care and targets medical professionals. In this respect, the burden of proof on the negligence and causality needs to be lessened for the benefit of the plaintiff s just compensation. On the other hand, the balance of proof and the extent of the compensation should also be taken into consideration, so that the doctor does not perform a defensive medical care to avoid the risk of compensation. Above mentioned attitude will enable both the patient who suffered from the improper treatment to get compensated for his injuries, and the doctor to perform a proper medical care-the decrease of malpractice and the increase of sufficient explanation-without unreasonable and physical medical disputes. According to the Supreme Court s decisions, the patient takes the burden of proof on the medical negligence, the damage, and the causality. However, considering the special, discretionary, secret and inexplicable characteristics of the medical practice, the causality can be presumed either by accepting indirect facts, or by proving the close time-gap, the consistent region of the body, and the possibility of other causes combined with the general common sense. The obstruction of taking evidence can also be applied to ease the proof. But the doctor is not liable if he proves other cause of the improper result, the specialty of the human body, or the inevitability of the result. The limitation of the liability and the duty of explanation for the right of self-defense also adjusts the distribution of the damages. In a medical malpractice action, different conclusions in the different level or chamber of the courts can results in the distrust against the judicial system. Thus, the criteria on the medical negligence needs to be formed. To this end, the standard of medical practice as a medical common sense, or the empirical rule by which the medical negligence or strongly probable causality can be assumed need to be set. The criteria should be flexible in order to comprise the diverse criteria or principles, keeping pacing with the continuous development of the medical treatment and the specialty and individuality of it. The Courts should also crystallize a general principle on the legal issues in medical disputes so that the medical malpractice action can be more detailed and exquisite. Eventually, medical malpractice action will be settled with the duty of explanation and the limitation of the liability. Especially at this time when the extreme individualism prevails, and the cure of the patient is regarded more important than the cure of the disease itself, diverse duty of explanation is necessary to recover trust between the doctor and the patient to decrease the medical dispute.

Ⅰ. 서론

Ⅱ. 의료과실의 입증

Ⅲ. 인과관계의 입증

Ⅳ. 설명의무

Ⅴ. 책임의 제한

Ⅵ. 결론

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