• 의료법학
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• 제9권2호
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• pp.311-338
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• 2008

This paper aims to introduce an overview of the regime of expert witness in the medical malpractice litigation, and to provide a plan of how to make it improved. In regard with medical expert witness, several problems, such as time-consuming procedure, non-neural and unclear opinion without reasons provided, have been pointed out for several years. Lack of skill of the court and plaintiff/defender to question the expert is one of many cause to lead to the above problems. What is questioned to the expert? Because expert witness is used in determining probability of negligence, questions to the expert should be selected on the grounds of whether or not to obtain opinions or facts sufficient to let the judge infer negligence in view of the theory of proof burden established by the Supreme Court. In addition, to avoid non-neutral and unclear opinion, it is necessary to question the expert clearly, specifically and scientifically.

• 의료법학
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• 제12권2호
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• pp.219-263
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• 2011

"Wrongful conception" is a medical malpractice claim in which the plaintiff is the parent of a normal, healthy infant whose conception was unplanned and unwanted. Medical malpractice in wrongful conception can be the result of a failure to provide informed consent to a patient, failure to properly perform a surgery, or a physician's negligent handling of a patient's problems. In the concrete, wrongful conception cases fall into two categories; those involving pre-conception negligence, such as a failed contraceptive, sterilization or failing of the controlling of embryo-number on the IVF, and those involving post-conception negligence, such as a failure to diagnose a pregnancy or to perform an abortion procedure. In addition, Medical malpractice can be the result of a failure to provide informed consent to a patient. When bad results occur by medical malpractice or failure to provide informed consent to a patient, the range of recovery of damages is decided by a traditional civil liability law. However the calculation of damages for wrongful conception is not easy because the high value of life is included in that case. So many courts opinions in foreign country and Seoul High Court decision in 1996 allow damages for the pregnancy, birthing process and sterilization costs, but refuses to allow damages for child rearing expenses. As to the range of recovery of damages for wrongful conception, one approach says that to allow damages in a suit such as this would mean that the physician would have to pay for the fun, joy and affection which plaintiff will have in the rearing and educating of the plaintiff's baby. To allow such damages would be against the dignity of the baby based on article 10 of the Constitution. However another approach says that damages are recoverable for all expenses related to child birth as well as for child rearing costs. Because the damages that the parents should bear a burden to the tort damage done is not a baby itself but child rearing costs. In other words, although the baby is healthy or not, economic burden of the parents can not be disregard. And denial of compensation for costs of child rearing may invalidate the role of liability law, grant the physician with a exemption certificate of liability. As a result, the medical field of procreation can be easily isolated from a liability of reparation. Therefore, on the liability law like the other medical malpractice action, parents who became pregnant or gave a birth by physician, wrongfully performed sterilization operation, etc. should be compensated for all damages relevant to unplanned and unwanted conception or birth as well as costs of child rearing.

• 의료법학
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• 제22권2호
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• pp.49-79
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• 2021

피고의 잘못된 임플란트 시술로 인하여 원고는 임플란트 보철물 도재 파절 및 역미소선, 치주염 등의 심각한 손상을 입은 사건에서 피고는 원고에게 불법행위 또는 채무불이행으로 인한 손해배상으로 향후 치료비와 위자료를 지급하라는 판결이 나왔다. 이번 대상판결에서는 치과치료에 관한 사안으로서 일반적인 의료과오소송과 마찬가지로 고도의 전문적 지식을 필요로 하는 분야로서 비전문가인 일반인으로서는 치과의사가 의료행위 과정에서 주의의무 위반이 있었는지 여부나 환자에게 발생한 손해 사이의 인과관계가 있었는지 여부를 밝혀내기 극히 어려우므로 증명책임을 경감하는 것으로 구성한 것이다. 대상판결의 사안에서처럼 수술 도중이나 수술 후에 환자에게 중한 결과의 원인이 된 증상이 발생한 경우에 그 증상의 발생에 관하여 의료상의 과실 이외의 다른 원인이 있다고 보기 어려운 간접사실들이 증명된 경우에는 그와 같은 증상이 의료상의 과실에 기한 것이라고 추정할 수 있다고 판시하였다. 특히 대상판결에서는 일반적인 수술적 치료의 사안이 아닌 임플란트의 시술의 사례로서 수단채무로서 치과진료의 의료과오소송에서 치과의사의 과실에 관한 환자의 입증책임을 소위 '사실상 추정론'에 근거하여 대폭 경감함으로써 의료기술의 발달과 증가하는 현대 의료과오소송에서 세계적 입법추세인 입증책임의 전환에 더욱 가까이 접근하였다는 점에서 큰 의미를 부여할 수 있다. 이러한 점은 대상판결에서 치과의사의 '과실'의 판단에 있어 "그 증상이나 발생에 관하여 의료상의 과실 이외의 다른 원인이 있다고 보기 어려운 간접사실이 증명되면 그와 같은 증상이 의료상의 과실에 기한 것이라고 추정할 수 있다"고 판시한 점에서 명확히 확인된다.

• Archives of Plastic Surgery
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• 제43권3호
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• pp.278-283
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• 2016

Background Disputes regarding medical malpractice occur between practitioners and patients. As patients have become increasingly aware regarding medical care, an increase in the unexpected side effects of procedures has been observed, thereby leading to an increase in disputes regarding medical malpractice. In this study, we reviewed trends in precedents involving cosmetic surgery-related medical disputes, with the goal of helping to prevent unnecessary disputes in the future. Methods We conducted a search of the judgments made in South Korean courts between 2000 and 2013 that were related to the field of plastic surgery. A total of 54 judgments were analyzed, and the selected precedents were reviewed and classified according to the kind of negligence involved. Results The claim amounts ranged from under 8 million KRW (6,991 USD) to 750 million KRW (629,995 USD). The most common ratio of the judgment amount to the claim amount was 20%-30%. The judgments were classified according to the following categories: violation of the duty of explanation in 17 cases (29%), violation of the duty of care in 10 cases (17%), violation of both duties in 20 cases (35%), and no violation of duty in six cases (10%). Conclusions Cosmetic surgery-related suits require different approaches than general malpractice suits. The Supreme Court requires plastic surgeons to determine the type, timing, methods, and scope of their treatments when considering possible results. Therefore, practitioners should be educated on their rights and responsibilities to enable them to cope with any possible medical dispute that may arise.

• Journal of Korean Neurosurgical Society
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• 제61권4호
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• pp.474-477
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• 2018

Objective : From November 30, 2016, the Korean Government carried the revised Medical Dispute Mediation and Arbitration Act into effect. Mediation will start automatically without agreements of the defendant, when the outcome of the patient was death, coma more than a month or severe disability. Cerebral aneurysm has a definite risk of bad outcome, especially in the worst condition. Any surgical intervention to this lesion has its own high risk of complications. Recently, Seoul central district court decided 50% responsibility of the doctors who made a rupture of the aneurysm during coiling (2015Ga-Dan5243104). We reviewed judicial precedents related to cerebral aneurysms in lawsuit using a web search. Methods : We searched judicial precedents at a web search of the Supreme Court, using the key words, "cerebral aneurysm". Results : There were 15 precedents, six from the Supreme Court, seven from the High Court, and two from district courts. Seven precedents were related to the causation analysis, such as work-relationship. Five precedents were malpractice suits related bad results or complications. Remaining three precedents were related to the insurance payment. In five malpractice precedents, two precedents of the Supreme Court reversed former two precedents of the High Court. Conclusion : Judicial precedents on the cerebral aneurysm included not only malpractice suits, but also causation analysis or insurance payment. Attention to these subjects is needed. We also need education of the independent medical examination. To avoid medical disputes, shared decision making seems to be useful, especially in cases of high risk condition or procedures.

• 치위생과학회지
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• 제8권1호
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• pp.13-20
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• 2008

본 연구는 치과위생사의 의료사고 및 분쟁에 대한 경험을 파악하여 치과위생사의 권익보호차원 및 조정을 통한 의료분쟁 해결방안의 기초자료로 삼고자 실시되었으며, 다음과 같은 결론을 얻었다. 1. 응답자의 32.5%가 의료분쟁 경험이 있는 것으로 나타났고, 이 중 55%는 치과위생사와 관련된 의료분쟁 경험이 있는 것으로 나타났다. 또한 일반적인 특성과 의료분쟁 경험 차이를 검정해 본 결과 나이, 임상경력, 근무지에 따라 유의한 것으로 나타났다. 2. 치과위생사와 관련된 의료사고 및 분쟁 유형은 환자 상담 및 예약이 27.3%로 가장 빈도가 높았다. 3. 의료분쟁시 치과위생사의 책임여부를 조사한 결과 전체 응답자 중 66.3%가 치과위생사에게 책임이 있다고 응답하였고, 책임이 있다고 응답한 대상자에게 책임 비율을 조사한 결과 응답자의 57.1%가 11-30%라고 하였다. 4. 치료전 관련 질환과 치료에 대해 모든 환자에게 충분히 설명한다는 경우는 55.3%였고, 모든 치과진료에 있어서 사전 동의를 구한 후 치료를 시행한 경우는 84.1%였다. 또한 의료분쟁 발생시 진료에 대한 설명이나 동의여부가 매우 중요한 역할을 한다는 경우는 78.0%로 나타났다. 5. 모든 환자의 진료기록을 충실히 작성하고 보관하는 경우가 82.1%로 나타났고, 의료분쟁 발생시 의무기록 관련 자료가 매우 중요한 역할을 한다고 생각하는 경우가 86.6%로 나타났다. 6. 향후 의료사고나 분쟁에 대한 의구심 정도를 조사한 결과 가끔 그렇다는 72.4%로 나타났고, 치과위생사의 업무 중 의료분쟁 및 의료사고가 우려되는 항목으로 교정용 브라켓 장착이라는 경우가 45.1%로 가장 높게 나타났다. 7. 의료분쟁에 대한 예방 및 대책과 관련된 교육이 필요하고 시급하다고 응답한 경우가 64.2%로 나타났고, 의료분쟁에 대한 예방 및 대책과 관련된 교육 시행시기에 대해 학교 교육과정과 보수교육 및 종합학술대회 모두라고 응답한 경우가 40.7% 였다. 본 연구의 결과를 통해 치과에서의 의료사고와 분쟁을 예방하기 위한 진료시 주의의무, 설명 및 동의의무 등 의무를 다할 수 있도록 하며 가장 기본적인 의무기록부 작성에 관심을 갖도록 한다. 또한 의료법에 따른 직무범위를 정확하게 인식하고 의료분쟁 예방과 대책에 관한 교육의 필요성을 인식시켜 앞으로 정규교과과정은 물론 대한치과위생사협회를 중심으로 학회 및 세미나를 통한 보수교육시 일정시간을 의료분쟁에 관련한 사항을 접할 수 있는 기회가 만들어져야 할 것으로 사료된다.

• 한국응급구조학회지
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• 제3권1호
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• pp.91-101
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• 1999

The medicolegal problem can be occurred in all medical field. Especially pre-hospital stage can be more exposed to the legal claims due to the very nature of EMT business and characteristics of ER patient or their family member. All Emergency Medical Technician should be concerned about the law associated with emergency care for handling the medicolegal problem, so the legally risky situations that may be occurred in pre-hospital stage and ER practice. This study reviewed malpractice claim of emergency patients filed in at Association of malpractice patients' family and two tertiary level hospitals. Problems related to treatment and misdiagnosis. Especially issues concerning emergency medical service system including of inadequate transport, delay in triage and transport accounted for many cases of all claims. This alerts us to the seriousness of medical accidents of emergency patient. This paper suggests several items that all E.M.T and every member of ED health care team always have to remember the medicolegally risk situations, must be trained in understanding the patients' wants and desires and should have the knowledge of the law associated with emergency health care. Develop the system that can share the informations about the medicolegal events which were experienced by each ED health care institutes.

• 의료법학
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• 제7권1호
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• pp.323-386
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• 2006

A combination of information technology and medical care has given rise to a new type of medicine, i.e., telemedicine. Broadly defined, telemedicine is the transfer of electronic medical data from one location to another. Both at home and abroad, telemedicine has come to success in establishing appropriate equipment and solutions for such non-conventional medicine. Sooner or later, telemedicine is believed to find itself as one of the universal treatments. In order to facilitate the full-fledged development of telemedicine, a number of legal and institutional problems have to be settled. In Korea, the Medical Act was amended to include such provisions as telemedicine, electronic medical records, electronic prescriptions, etc. and the Act came into force on March 31, 2002. Telemedicine is in common with the conventional medicine in that a physician treats a patient. However, telemedicine is basically differentiated in the followings: - The offer and acceptance of treatment and medication are usually made on-line; - Telemedicine is inherently dangerous because a physician cannot meet face-to-face with a patient; and - Joint and several liability is borne by all the physicians involved in a telemedical consultation. As a result, telemedicine is vulnerable in nature to medical malpractice. Accordingly, there must be some new theories and arguments in the formation of contract and torts. The discussion on the civil liability covers the above-mentioned issues, and would give an insight or guidelines in the concerted operation of provisions with respect to telemedicine. This study delves into the civil liability of physicians involved in telemedical consultations and treatments based upon the conventional malpractice theory.

• 의료법학
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• 제8권2호
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• pp.195-204
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• 2007

It is a general principle that the plaintiff takes burden of proof about negligence and causation in a civil compensation litigation. And it is the same in a medical malpractice lawsuit. Korean courts have made diverse efforts to mitigate the plaintiff's duty to prove in medical malpractice lawsuits under the name of justice and impartiality. One of those theoretical attempt is 'presumption of causation'. The Supreme Court, since 1995, has developed a new logic for the theory of 'presumption of causation' which is characterized by a phrase "layman's common sense". The Court presumes the defendant's negligence and causation when the plaintiff alleges and proves the facts which can be pointed out and expressed by a layman with common sense. And if the defendant fails to prove that the result was caused by other fact than own medical activities, the defendant shall be defeated. I realize that this theory has problem for justice and impartiality. I would say that two fators should be considered and added to this logic. First,are defendant's acts generally belonging to gross negligence which would cause that kind of bad result? Second, is it recognized that there would be the causation generally and statistically between the cause and the result?

• 한방안이비인후피부과학회지
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• 제25권3호
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• pp.78-87
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• 2012

Objective : The purpose of this study is to describe the characteristics of medical malpractice related to pediatric ophthalmology and to identify the causes and potential preventability of medical litigation in Korean medicine. Methods : A study was performed by analysing 8 cases of lawsuit in the year between 1968 and 2011, which were selected among the medical dispute cases involving pediatric ophthalmology. Results : The eight closed claims occurring in the field of pediatric ophthalmology were founded in the data for medical malpractice. One claim was supreme court decision, two claims were high court decisions and five claims were district court decisions. Conclusions : While malpractice claims occurring in the field of pediatric ophthalmology were uncommon, they resulted in a high rate and amount of indemnity payments. For reduction of medical disputes, improvement of clinical trials and clinical medical cares is emphasized, and informed consent is also important.