의료과오의 책임법리와 입증책임에 관한 연구

Abstract

With current swift development in medicine or medical treatment, though higher-quality medical services are being provided in comparison with those of the past, medical debates due to faults in medical services tend to be increasing. It seems that such tendency is influenced by promoted consciousness of patients in their right, collapse of reliability on medical service, and increased opportunities of legal structures. The damages to patients due to medical services are called medical accidents in medical services and only the faults are caused by doctors ( medical institutes) are called medical faults. As they are provided to improve patients' health or treat their diseases even though medical services accompany invasion to human bodies, we use Chimseup(invasion) for differentiation from the term of 'infringement' against illegal behavior. In case that a patient has a disadvantage by invasion by a doctor to cure him, (1) is it desirable to resolve it by a lawsuit? (2) In case that a judgement is presented through a lawsuit, will both the doctor and the patient be satisfied ? In case of (1), it may cause increase of medical charges accompanied by defensive medical service and insurance fee, and inclination of medical areas. In case of (2), it may cause distrust in medical staff, devastation of medical ethics and commercialism of medical services. However, when a medical lawsuit is presented, a judgement must follow, which may cause medical lawsuits to be abused. Medical lawsuits blame the doctor for debt failure or illegal behavior (Articles 390 and 750 of the civil law). There are many precedents that blame liability on illegal behaviors. Why? In case debt failure is blamed, the decision has to rely on imperfect performance charge and if so, the patient, a plaintiff, has to demonstrate the medical service is imperfect while the doctor has to demonstrate that he has no fault. At this time, it is difficult for patient to demonstrate the imperfectness of the medical service because he is not professional. However, in case that the illegal behavior is blamed, the patient has to demonstrate the fault of the doctor. In this case, it is difficult to expect the patient to demonstrate it perfectly and if the principle of demonstration liability is realized, it is apparent that the patient has a disadvantage in a lawsuit. So, if the patient demonstrates that there is a probability in demonstration of the doctors' fault, the patient's burden to demonstrate the fault of the doctor and causal relations tends to be mitigated or relieved. Furthermore, in some cases, as medical services are provided when the patient is unconscious, and the medial lawsuits are usually presented a considerable time after the patient's leaving the hospital, the patient has difficulty in disclosing the facts of the past. If this problem is abandoned and offenses and defenses between the doctor and the patient are observed, equity and fairness pursued by the civil procedure can not be achieved. Meanwhile, if a disadvantage is given to the doctor in the lawsuit in consideration of non-professional aspect of the patient, it is also unfair. So, mitigation or transfer of the liability for demonstration can satisfy both the two parties at the same time. For the balanced viewpoint of this study with the goal of this study as an assumption, this study is to parallel a comparative analysis and a review on precedents in consideration of reality of the problem.