• Title/Summary/Keyword: malpractice

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The Development on Medical Malpractice Lawsuit and its Burden of Proof (의료과오소송 입증책임론의 전개와 발전)

  • Shin, Eun-Joo
    • The Korean Society of Law and Medicine
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    • v.9 no.1
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    • pp.9-56
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    • 2008

  • The medical practice does not always get a satisfatory result since the disease progress of patients are depended on patients' physical constitution and the doctors cannot control the outcomes about patients' physiological and biological reaction after the treatment. Moreover, the medical practice may bring wrong result fatalistically because of the unpredictablility of life. To demand for compensation of the damage to the doctors about these wrong result, the patient side holds the burden of proof that is between medical practice and demage, and there is damage from doctor's malpractice according to the accepted theory about the fundamental principle of distribution of the burden of proof. This falls not only under the liability of Tort Law, but also liability of Contract Law. However, the patient may be in difficult situation to prove the malpractice of doctors since he or she cannot recognize the facts because he or she was in unconscious while the medical practice was conducted, or they cannot judge precisely even though they recognize the facts. Nevertheless, the lawsuits against medical malpractice are the field that never achieves the equality of arms since the most of the evidence belong to the doctor's side. Hence, to maintain the principle of the equality of arms under the constitution, the theory leads to alleviate the burden of proof that patients hold. However, the doctors cannot be asked for the burden of proof that they conduct medical practice without errors. Because the doctors may experience difficulty to prove their innocence as the patients because of the unique characteristic that medical practices have. Therefore, the methods of the alleviation of the patient's burden of proof should have the equality of arms and the equal opportunity between the patients and the doctors with the evaluation of the justifiable interest from both the patients and the doctors. As the methods of the alleviation of the burden of proof, the alleviation of the demands and the degree of the burden of proof or resolutely the conversion of the burden may be considered. However, Recognizing the exception from general principle with converting the burden of proof is not proper in principle because the doctors may experience difficulty of the proof as the patients may have. If the difficulty of proof can be resolved by alleviating of the demands and the degree of the burden of proof, it is more desirable resolution rather than converting the burden of proof.

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Trends of the Precedent Case concerning Hospitalized Acquired Infection (병원감염에 관한 판례의 동향)

  • Lee, Dong-Pil
    • The Korean Society of Law and Medicine
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    • v.8 no.1
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    • pp.61-105
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    • 2007

  • The Hospitalized Acquired Infection is defined as the case where the hidden infection or not found at the time of hospitalization occurs during the hospitalized period or, within 30 days to those who performed the surgery operation and then left the hospital. About 2/3 of the Hospitalized Acquired Infection are found as having the internal infection cases that are occurred by the patients' own virus due to the lowered immune system, while about 1/3 are found as having the external infection. The latter 1/3 of the external infection cases can be prevented through the infection management. And in case the new Hospitalized Acquired Infection case occur to the patient who was treated in the hospital, its responsibility issue will matter. As well in the disputes over the Hospitalized Acquired Infection cases, the cause-result relation between the damages and the medical staff's fault and as to whether there is failure of the medical staff or not. personnel should be proved in the medical-malpractice cases. In addition, the difficulties in proving such as expertise, secrecy propensity, discrete propensity and incompleteness will be considered to ease the burden of patient side's proving. Probability theory, Fact based assumption theory, Most adequate plaintiff preassumption or Expressed evidence theories are being discussed as the theories of eased burden of proof. In the result of gathering and reviewing Korea's precedent cases concerning the Hospitalized Acquired Infection, there are only a few accumulated prece dent cases and the attitude of the court also are also not consistent. Therefore, there are the precedents where the cause-result relation and the failure are immediately assumed when (1) timely proximity between the medical behavior and malpractice results, (2) proximity between the medical behavior-applied parts and the malpractice results-found parts, and (3) lack of other causes are separately evidenced; while the are the precedents only when 'the existence of the medical faults based on the common sense' is separately evidenced. It was found that the former and latter cases coexisted. The former is considered as based on the theory that separates the fault and cause-result relation not to consider them together, or regarded as based on the doubts that assumes the medical staff's neglect even though the Hospitalized Acquired Infection might be completely prevented by their efforts. However, the modern medical technology has the limitation as far as the prevention of the Hospitalized Acquired Infection. In conclusion, the assumption of the cause-result relation and that of the fault should be separately reviewed. Therefore, the latter precedents are considered as more reasonable, in the point the faulty behavior may be proved based on the common sense.

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Medico-Legal Consideration of Hemopneumothorax - Closing Claim Study- (혈${\cdot}$기흉과 관련된 의료법학적 문제에 대한 고찰 -종결된 사건을 중심으로-)

  • Bae, Hyu-Na;Cheon, Young-Jin
    • Journal of Chest Surgery
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    • v.39 no.2 s.259
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    • pp.117-126
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    • 2006

  • Background: The purpose of this study is to describe the characteristics of malpractice claims related to hemopneumothorax and to identify the causes and potential preventability of such claims. Material and Method: A retrospective study was performed by reviewing the records in the Lawnb website and Lx CD-rom: the records on closed malpractice claims involving hemopneumothorax were abstracted from the files available for analysis. The records were reviewed and were analysed to determine the etiology of hemopneumothorax, patient age, results of lawsuit and indemnity payment, underlying diseases, cause of death or complications, and the factors associated with a successful defense. Result: Seven closed claim involving hemopneumothorax were founded in the data for malpractice. Three claims were supreme court decision, one was a high court decision and three claims were district court decision. The most common cause of death was tension pneumothorax. Four of which resulted in indemnity payments. Conclusion: While malpractice claims involving hemopneumothorax were uncommon, they resulted in a high rate and amount of indemnity payments. Claims are more common in pediatric patients. In case of iatrogenic hemopneumothorax, post-procedural X-ray can improve patient outcome and is also associated with decreased indemnity risks. Informed consent is also important.

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