• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.105-138
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• 2017

This is case comments of several representative legal cases regarding self- determination right of patient. In a case in which an intoxicated patient attempted suicide refusing treatment, the Supreme Court ruled that the medical team's respect for the patient's decision was an act of malpractice, and that in particular medical situations (medical emergencies) the physician's duty to preserve life supersedes the patient's rights to autonomy. Afterwards, at the request of the patient's family, and considering the patient's condition (irrecoverable death stage, etc.) consistent with a persistent vegetative state, the Supreme Court deduced the patient's intention and decide to withdraw life-sustaining treatment. More recently, regarding patients who refuse blood transfusions or other necessary treatment due to religious beliefs, the Supreme Court established a standard of judgment that can be seen as conferring equal value to the physician's duty to respect patient autonomy and to preserve life. An empirical study of legal precedent with regard to cases in which the physician's duty to preserve life conflicts with the patient's autonomy, grounded in respect for human dignity, can reveal how the Court's perspective has reflected the role of the patient as a decision-making subject and ways of respecting autonomy in Korean society, and how the Court's stance has changed alongside changing societal beliefs. The Court has shifted from judging the right to life as the foremost value and prioritizing this over the patient's autonomy, to beginning to at least consider the patient's formally stated or deducible wishes when withholding or withdrawing treatment, and to considering exercises of self determination right based on religious belief or certain other justifications with informed refusal. This will have a substantial impact on medical community going forward, and provide implicit and explicit guidance for physicians who are practicing medicine within this environment.

• Korea Trade Review
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• v.46 no.5
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• pp.173-194
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• 2021

This study aims to derive precaution points for issuing banks in refusing payment under L/C through literature review and examination of court cases and official opinions of ICC Banking Commission with regard to the provisions of article 16 of UCP 600 that stipulates obligations of issuing banks in refusing payment. If the issuing bank fails to act in accordance with this article, it shall be precluded from claiming that the documents do not constitute a complying presentation. Therefore, it is crucial that issuing banks should be well informed of this article. When discrepant documents are presented, however, issuing banks seldom refuse payment because, in most cases, the applicants waive the discrepancies. For this reason, issuing banks have few chances to deal with payment refusal in practice and thus they occasionally end up failing to observe the provisions of the article. Such court cases include Kookmin Bank and Korean Exchange Bank (currently Hana Bank) that failed to indicate discrepancies in the refusal notice losing the lawsuits. It should be noted that if issuing banks disregard the provisions of article 16 of UCP 600 and thus fail to indicate discrepancies in the refusal notice, they may face fatal situations in which they must make payment against discrepant documents.

• Fire Science and Engineering
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• v.19 no.4 s.60
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• pp.47-56
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• 2005

The regulation on organization and operation of rescue and aid party was amended. This Regulation is designed to provide legal formality in order to protect not only the patients' right but also 119 rescuers from liability, which is due to treatment refusal by patient and the discretionary refusal of transfer by 119 rescuers on the non-emergency situation. This study looked over the constitute of violation of emergency medical service act related to the discretionary refusal of 119 rescuers, the criminal liability owing to omission and the possibility of national indemnities on the damage of patients. This study also analyzed the courts' decision and attitude by exploring overseas judicial precedents and examined what should be considered on the execution of the newly enacted law. Finally, this study put emphasis on the importance of medical director's control, documentation of every procedure, 119 rescuer's authorization on the refusal of transfer by securing patient's informed consent.

• Journal of The Korean Society of Clinical Toxicology
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• v.3 no.1
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• pp.1-10
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• 2005

Gastric lavage is now known to be ineffective, unnecessary or hazardous in some circumstances where it used to be performed as a routine. This article concerns the medico-legal aspect of forced gastric lavage. The Supreme Court 2005.1.28, 2003da14119 is the case where a patient, who ingested the organophosphate insecticide to attempt suicide and refused lavage. At first we discuss the effectiveness or hazards of lavage because a very high degree of proof -of negligence, not error of clinical judgment - would be required. Lavage, with or without the informed consent, performed negligently which result in harm could, of course, give rise to a claim in negligence. A doctor might also be held negligent in failing to perform an act which he/she had a duty to perform.

• The Korean Society of Law and Medicine
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• v.23 no.1
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• pp.37-80
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• 2022

By analyzing informed consent and the refusal of emergency medical treatment (called patient dumping) under the current Emergency Medical Service Act, this study suggests that an emergency medical professional is only liable for patient dumping if their duty to protect the patient's life takes precedence over the patient's right to self-determination. In emergency medical situations, as in general medical situations, medical treatment should be performed after the emergency medical professional informs the patient about the medical treatment, including its necessity and methods, and obtains consent from the patient. Refusing or evading the performance of emergency medical services on the excuse of the informed consent not considering a waiver or alteration of informed consent requirements without reasonable reasons violates the Emergency Medical Service Act and thus makes an emergency medical professional liable to administrative disposition or criminal penalty. In other words, depending on the existence of a waiver of alteration of the informed consent, patient dumping may be established. If the patient is a minor or has no decision-making ability, and their legal representative makes a decision against the patient's medical interests, the opinion of the legal representative is not unconditionally respected. A minor also has the right to decide over their body, and the decisions of their legal representatives should be in the patient's best interests. If the patient refuses treatment, in principle, the obligation of life protection of emergency medical professionals is the top priority. However, making these decisions in the aforementioned situations in the emergency medical field is difficult because of the absence of explicit regulations regarding these exceptional problems. This study aims to organize the following precedents of the Supreme Court of Korea. The court states that, when balancing the conflicting interests between the duty to provide emergency medical service and the duty to inform is unavoidable for emergency medical professionals, they should put the duty to protect the patient's life ahead of the duty to inform if the patient's life matters. Exceptionally, when a patient has seriously considered whether they should receive treatment before the emergency medical situation, their right to self-determination can be considered equal to the obligation of emergency medical professionals to provide emergency medical treatment. This research also suggests that an amendment of the Emergency Medical Service Act should include the following. First, the criteria for determining the decision-making ability of emergency patients should consist of medical content. Second, additional consent from a medical professional is unnecessary for first-aid treatment. Finally, new provisions for emergency medical obligations for minors, new provisions for the decision standard when there are conflicting opinions about the treatment of a patient, and new penalty provisions for professionals who suspend emergency medical examinations and treatments need to be established.

• Journal of The Korean Society of Inherited Metabolic disease
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• v.18 no.2
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• pp.50-54
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• 2018

Jehovah's Witnesses do not accept blood transfusions, because of their particular interpretation of the Old and New Testaments. When people with such religious convictions are in need of medical care, their faith and belief may become an obstacle for proper treatment, and pose legal, ethical, and medical challenges for the health care providers. We report two inherited metabolic disorder cases in South Korea where the infants died whilst under medical care because of parental refusal of blood transfusions for religious reasons. Case 1 had methylmalonic acidemia, Down syndrome and associated congenital cardiac anomalies requiring surgery. Case 2 had anemia and methylmalonic acidemia requiring dialysis to treat hyperammonemia and metabolic acidosis. For effective medical management, they needed life-saving blood transfusions. As a part of alternative treatment, Erythropoietin was administered in both cases. As a result, two babies died from their extremely low hemoglobin and hematocrit. The hemoglobin concentrations below 2.7 g/dL without cardiac problem and 5.4 g/dL with cardiac anomaly complicated by pulmonary hypertension are considered life-threatening hemoglobin threshold. The medical professional must respect and accommodate religious beliefs of the patients who can make informed decisions. However, when parents or legal guardians oppose medical treatment of their babies and incompetent care receivers on cultural and religious grounds, the duty to assist and save persons exposed to serious danger, particularly life-threatening events must come first.

• Journal of Arbitration Studies
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• v.26 no.4
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• pp.3-41
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• 2016

This paper reviews the problems on the arbitral awards enforcement in the 2016 Korean Arbitration Act. In order to get easy and rapid enforcement of the arbitral awards, the new arbitration act changed the enforcement procedure from an enforcement judgement procedure to an enforcement decision procedure. However, like the old arbitration act, the new act is still not arbitration friendly. First of all, there are various problems in the new act because it does not approve that an arbitral award can be a schuldtitel (title of enforcement) of which the arbitral award can be enforced. In this paper, several problems of the new act are discussed: effect of arbitral award, approval to res judicata of enforcement decision, different trial process and result for same ground, possibility of abuse of litigation for setting aside arbitral awards and delay of enforcement caused by setting aside, infringement of arbitration customer's right to be informed, and non-internationality of enforcement of interim measures of protection, inter alia. The new arbitration act added a proviso on article 35 (Effect of Arbitral Awards). According to article 35 of the old arbitration act, arbitral awards shall have the same effect on the parties as the final and conclusive judgement of the court. The proviso of article 35 in the new act can be interpret two ways: if arbitral awards have any ground of refusal of recognition or enforcement according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court; if arbitral awards have not recognised or been enforced according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court. In the case of the former, the parties cannot file action for setting aside arbitral awards in article 36 to the court, and this is one of the important problems of the new act. In the new act, same ground of setting aside arbitral awards can be tried in different trial process with or without plead according to article 35 and 37. Therefore, progress of enforcement decision of arbitral awards can be blocked by the action of setting aside arbitral awards. If so, parties have to spend their time and money to go on unexpected litigation. In order to simplify enforcement procedure of arbitral awards, the new act changed enforcement judgement procedure to enforcement decision procedure. However, there is still room for the court to hear a case in the same way of enforcement judgement procedure. Although the new act simplifies enforcement procedure by changing enforcement judgement procedure to enforcement decision procedure, there still remains action of setting aside arbitral awards, so that enforcement of arbitral awards still can be delayed by it. Moreover, another problem exists in that the parties could have to wait until a seventh trial (maximum) for a final decision. This result in not good for the arbitration system itself in the respect of confidence as well as cost. If the arbitration institution promotes to use arbitration by emphasizing single-trial system of arbitration without enough improvement of enforcement procedure in the arbitration system, it would infringe the arbitration customer's right to be informed, and further raise a problem of legal responsibility of arbitration institution. With reference to enforcement procedure of interim measures of protection, the new act did not provide preliminary orders, and moreover limit the court not to recognize interim measures of protection done in a foreign country. These have a bad effect on the internationalization of the Korean arbitration system.

• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.145-173
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• 2016

A patient's Right to Self-Determination or his/her Right of Autonomy in the Republic of Korea has traditionally been understood as being composed of two elements. The first, is the patient's Right to Know as it pertains to the physician's Duty to Report [the Medical Situation] to the patient; the second, is the patient's Right to Consent and Right of Refusal as it pertains to the physician's Duty to Inform [for Patient's Consent]. The legal and ethical positions pertaining to the patient's autonomous decision, particularly those in the interest of the patient's not wanting to know about his/her own body or medical condition, were therefore acknowledged as passively expressed entities borne from the patient's forfeiture of the Right to Know and Right to Consent, and exempting the physician from the Duty to Inform. The potential risk of adverse effects rising as a result of applying the Informed Consent Dogma to situations described above were only passively recognized, seen merely as a preclusion of the Informed Consent Dogma or a denial of liability on part of the physician. In short, the legal measures that guarantee a patient's 'Wish for Ignorance' are not currently being understood and acknowledged under the active positions of the patient's 'Right Not to Know' and the physician's 'Duty to Consideration' (such as the duty not to inform). Practical and theoretical issues arise absent the recognition of these active positions of the involved parties. The question of normative evaluation of cases where a sizable amount of harm has come up on the patient as a result of the physician explaining to or informing the patient of his/her medical condition despite the patient previously waiving the Right to Consent or exempting the physician from the Duty to Inform, is one that is yet to be addressed; that of ascertaining direct evidence/legal basis that can cement legality to situations where the physician foregoes the informing process under consideration that doing so may cause harm to the patient, is another. Therefore it is the position of this paper that the Right [Not to Know] and the Duty [to Consideration] play critical roles both in meeting the legal normative requirements pertaining to the enrichment of the patient's Right to Self-Determination and the prevention of adverse effects as it pertains to the provision of [unwanted] medical information.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.3-46
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• 2017

Physician's Duty of Information is classified into three categories by legal function: 'Duty of Information to Report' to fulfill the patient's right to know; 'Duty of Information to Guide' patient's convalescing and staying healthy; 'Duty of Information to Contribute' to patient's self-determination. We classify the physician's duty of information because the legal effect from the breach of duty varies accordingly. The legal effect is focused on damage compensation responsibility for breach of duty. When a physician violates 'Duty of Information to Report', he subjects himself to liability of compensation for infringing on the patient's 'Right to Know'. When a physician violates 'Duty of Information to Guide', she subjects herself to liability for general medical malpractice. Finally, when a physician violates 'Duty of Information to Contribute', the physician is basically liable for violation of the patient's 'Right to Self- Determination' which refers to infringement on freedom of choice. However, in the case of situation that patient's refusal to the medical treatment would be presumed, the physician bears all liability for the patient's damage which includes both of property and mental damage.

• Radiation Oncology Journal
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• v.19 no.2
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• pp.127-135
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• 2001

Purpose : This study is a prospective randomized clinical trial comparing the efficacy and complication of anti-emetic drugs for prevention of nausea and vomiting after radiotherapy which has moderate emetogenic potential. The aim of this study was to investigate whether the anti-emetic efficacy of ondansetron $(Zofran^{\circledR})$ 8 mg bid dose (Group O) is better than the efficacy of metoclopramide 5 mg lid dose (Group M) in patients undergoing fractionated radiotherapy to the abdominal region. Materials and Methods : Study entry was restricted to those patients who met the following eligibility criteria: histologically confirmed malignant disease; no distant metastasis; performance status of not more than ECOG grade 2; no previous chemotherapy and radiotherapy. Between March 1997 and February 1998, 60 patients enrolled in this study. All patients signed a written statement of informed consent prior to enrollment. Blinding was maintained by dosing identical number of tablets including one dose of matching placebo for Group O. The extent of nausea, appetite loss, and the number of emetic episodes were recorded everyday using diary card. The mean score of nausea, appetite loss and the mean number of emetic episodes were obtained in a weekly interval. Results : Prescription error occurred in one patient. And diary cards have not returned in 3 patients due to premature refusal of treatment. Card from one patient was excluded from the analysis because she had a history of treatment for neurosis. As a result, the analysis consisted of 55 patients. Patient characteristics and radiotherapy characteristics were similar except mean age was $52.9{\pm}11.2$ in group M, $46.5{\pm}9.5$ in group O. The difference of age was statistically significant. The mean score of nausea, appetite loss and emetic episodes in a weekly interval was higher in group M than O. In group M, the symptoms were most significant at 5th week. In a panel data analysis using mixed procedure, treatment group was only significant factor detecting the difference of weekly score for all three symptoms. Ondansetron $(Zofran^{\circledR})$ 8 mg bid dose and metoclopramide 5 mg lid dose were well tolerated without significant side effects. There were no clinically important changes In vital signs or clinical laboratory parameters with either drug. Conclusion : Concerning the fact that patients with younger age have higher emetogenic potential, there are possibilities that age difference between two treatment groups lowered the statistical power of analysis. There were significant difference favoring ondansetron group with respect to the severity of nausea, vomiting and loss of appetite. We concluded that ondansetron is more effective anti-emetic agents in the control of radiotherapy-induced nausea, vomiting, loss of appetite without significant toxicity, compared with commonly used drug, i.e., metoclopramide. However, there were patients suffering emesis despite the administration of ondansetron. The possible strategies to improve the prevention and the treatment of radiotherapy-induced emesis must be further studied.