Damage reports continue due to medical gaps... Should medical accident damages be reduced?

Many damages, including delays in surgery and refusal of medical treatment… “Proving causation is important”

As the mass resignation of residents continues due to sharp disagreements over the expansion of medical school seats, the number of cases of patients suffering damage due to not receiving treatment on time is increasing.

The Ministry of Health and Welfare announced that as of 10 p.m. on the 21st, 9,275 residents at 100 teaching hospitals across the country had submitted resignation letters. Of these, 87% were confirmed to have actually been absent from work.

As the mass resignation of medical residents has led to a medical vacuum, cases of damage to patients are coming out one after another as feared.

On the 21st alone, there were 57 reports received to the government’s doctor group action damage reporting and support center. In detail, there were 44 cases of delayed surgery, 6 cases of refusal of treatment, 5 cases of cancellation of medical appointments, and 2 cases of delayed hospitalization. There were also cases where a child's surgery was scheduled a year ago and the guardian took leave from work, but hospitalization was delayed.

It is also predicted that patients who have experienced inconveniences such as delays in treatment or surgery may file medical lawsuits.

If a surgery or treatment is canceled due to collective action by residents and a patient suffers damage, the resident or hospital may be held liable for medical accident damages.

In fact, in 2004, the bereaved family of a patient who died after complaining of abdominal pain after undergoing cholangiopancreatography at the hospital's recommendation filed a lawsuit for compensation for medical malpractice damages, and the court ruled on compensation.

It pointed out that residents were on strike due to the division of medicine at the time, and ruled that the hospital, which failed to fulfill its duty of explanation, was liable for compensation.

However, the opinion of the legal community is that it is very difficult to prove that damage occurred due to collective action in medical accident damages.

Attorney Choi Hyeon-deok of Daeryun Law Firm (Limited) said, “If a scheduled surgery or treatment schedule is unilaterally changed or delayed without the patient’s consent, compensation for medical accident damages can be claimed. However, it is difficult to prove that there is a causal relationship between the individual’s illegal actions and the patient’s worsening health.”

Last year, for patients who underwent pin fixation surgery, the hospital recommended pin removal one month after surgery, but there were cases of serious disabilities such as delayed union and malunion in the affected area after removal.

The court determined that the doctor had violated his duty of care when removal surgery was only possible after a year and ruled that the medical accident damages claim be paid.

Attorney Choi explained, “Responsibility must be clearly determined based on evidence such as medical treatment confirmation, detailed statement of surgical expenses, and post-surgery photos.”

Meanwhile, in response to the mass resignation of medical residents, the government inspected 10 training hospital sites and issued a work start order to residents who were found to have not shown up at their workplace for a long period of time.

A ‘prior notice of administrative action to suspend a doctor’s license’ will be sent to residents who do not return despite repeated issuance of orders to resume work.

The Emergency Response Committee of the Korean Medical Association claimed, “The resident who resigned of his own free will was exercising his basic rights guaranteed by the Constitution,” and “The government is encouraging medical workers who have resigned and are unemployed to work in violation of the Labor Standards Act and the Medical Service Act.”

Regarding this, Attorney Choi pointed out, “If there is no clear evidence of prior collusion, it is impossible to punish individual resignations alone,” and “It is also difficult to punish failure to extend individual contracts as a collective action if there is no circumstances of collusion.”

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