韓藥業事의 說明義務

醫師의 說明義務 法理의 연장선상에 있는가?硏究對象判決: 대법원 2002. 12. 10. 선고 2001다56904 판결(공 2003, 327)

Occasionally unfortunate accidents do occur when they could have been easily prevented. A good example is the Supreme Court case decided December 10, 2002. The defendant in this case, was an oriental medicine retailer who sold a medicinal herb called Cho-Oh (Acontum jaluense Komarov) to one of the plaintiffs, a purchaser, but failed to inform the indications and dosage of the herb and other required information, and also failed to warn the purchaser of the risks associated with it. The purchaser prepared a home-brewed herbal medicine by boiling Cho-Oh in water, which was subsequently consumed by the purchaser s husband. Unfortunately, the husband died soon after and it turned out that the cause of his death was a fatal dose of the Cho-Oh concentrate. The victim s family, the wife and children, brought a claim against the retailer for damages. The Supreme Court held that the defendant was liable for the damages on the basis that he breached the Duty to Inform and the victim was consequently denied the right to make an informed choice(i.e the right to self- determination) on the herbal products to fit their medical needs. The Supreme Court s decision had the effect of imposing on the oriental medicine retailer the same Duty to Inform standard, which the courts have generally applied to medical doctors or pharmacists. Accordingly, the question arises as to whether it is fair to subject the oriental medicine retailers to such standard, given that the doctrine of duty to inform was developed with a view to protecting the patient s right to informed consent i.e. to make informed health care decision, in particular with respect to the medical treatments suggested by a doctor or a pharmacist. The Supreme Court is right in concluding that there is tort liability for this breach of duty of care in selling herbal medicine. However, the ruling still begs the question as to whether the oriental medicine retailer s failure to inform the purchaser could reasonably be considered as infringing the right of self-determination of the patient. Even if the retailer is shown to be highly knowledgeable of herbs and their medical uses, due consideration should be given to the fact that he is simply a merchant running a herb store. As such a distinction should be drawn between the Duty to Inform as is applicable to a doctor and to an oriental medicine retailer (a non-medical profession). Still there remains other grounds to impose on the oriental medicine retailer tort liability for his failure to inform the purchaser of the potential health risks associated with herbal medicines. The defendant retailer has the duty to warn the patient of risks and provide prescription instructions including the proper proportions of the herbal ingredients, and information, if any, on detoxification methods. This duty, however, is not to protect the patient s personal self-determination right. In this sense, the Oriental Medicine Retailer s duty to warn of possible side effects can be distinct from a doctor s Duty to Inform his patient of material risks and alternative treatments, which is designed to protect the patient s personal self-determination right. In principle, a doctor has the duty to inform the patient in person of the suggested course of treatment and other relevant and material information, barring any exceptional circumstances that render the patient unable to understand the information provided, for example, where the patient is unconscious. On the other hand, the Oriental Medicine Retailer is not necessarily obliged to provide the herb-related information directly to the actual medicine taker, since the Oriental Medicine Retailer s duty to inform is not performed with a view protecting a patient/medicine-taker s self-determination right. Nevertheless, the