Medical Dispute Conciliation/Arbitration

A medical dispute refers to a case in which, in the course of a healthcare professional performing a medical act such as diagnosis, examination, treatment, or the prescription or dispensing of medicine for a patient, harm occurs to the patient's life, body, or property and a dispute arises between the parties.

▶ Criteria for healthcare professionals

The Korea Consumer Agency is a public institution established under Article 65 of the "Framework Act on Consumers," and it performs various functions to protect consumers' rights and interests and to improve the quality of consumer life.

Among these, dispute mediation for consumer harm is one of the core functions performed by the Korea Consumer Agency, and harm caused by medical practice may also be included as a subject of mediation.

To commence mediation proceedings through the Korea Consumer Agency in connection with a medical dispute, the following requirements must be met.

▶ Parties who may apply for mediation

The consumer in person, the State, local governments, consumer organizations, and the like

▶ Conditions for commencing mediation

If no settlement is reached within 30 days after a request for redress, the Korea Consumer Agency may apply for mediation to the Consumer Dispute Mediation Committee.

However, before the case is referred to the Consumer Dispute Mediation Committee, a settlement recommendation procedure through a consumer organization or the Korea Consumer Agency must first be undergone.

① Request for conciliation

Where an agreement between the parties has not been reached despite having gone through the relief procedure, the consumer may apply to the Consumer Dispute Settlement Commission for dispute conciliation.

② Composition of the Consumer Dispute Settlement Commission

The Consumer Dispute Settlement Commission, which handles dispute conciliation, consists of up to 150 members, including one chairperson.

Of these, the chairperson and four standing members serve on a standing basis, and the remainder serve as non-standing members.

③ Review of the case

For an objective and fair determination, the conciliation commission carries out additional investigation procedures, such as fact-finding, testing, and expert consultation, where necessary.

④ Holding the dispute conciliation meeting

A case for which review has been completed is deliberated at a dispute conciliation meeting attended by no fewer than 3 and no more than 11 members, including a standing member, who decide whether to grant conciliation based on the contents of the case and the related materials.

⑤ Conciliation decision and notification

Once the conciliation result is decided, its contents are notified to both parties, and each party must respond as to whether it accepts within 15 days from the date of notification.

If no separate opinion is expressed within 15 days, the conciliation proposal is deemed to have been automatically established.

Under the Framework Act on Consumers, mediation must, as a rule, be completed within 30 days from the date the request to commence mediation is received.

However, where there is a justifiable reason, the mediation period may be extended.

Once mediation is established thereafter, its content has the same effect as a judicial settlement.

In other words, where mediation is established, a lawsuit cannot be filed again regarding that dispute.

Even after a mediation is established, if the other party does not comply with the decision, compulsory execution may be available through the following procedure.

Pursuant to Article 4 of the Rules on the Grant of Execution Clauses for Mediation Protocols of Various Dispute Mediation Committees and the Like, a party may apply to the competent court for the grant of an execution clause and then claim compulsory execution based on the contents of the relevant decision.

The Korea Medical Dispute Mediation and Arbitration Agency is a public institution established to provide relief to victims of medical accidents and to resolve medical disputes amicably.

Under the Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes, it performs functions such as the mediation and arbitration of medical disputes, medical appraisal, and consultation.

A victim of a medical accident, the party responsible, any other interested person, or their agents may apply for mediation to the Korea Medical Dispute Mediation and Arbitration Agency.

An agent may be a legal representative, a spouse, a lineal ascendant or descendant, a sibling, an officer or employee, an attorney, and the like, and, in exceptional cases, a third party who has received a written delegation may also serve.

Mediation of a medical dispute must be applied for within the statutory period.

• Within 10 years from the date the medical accident occurred

• Within 3 years from the date of becoming aware of the damage and the party responsible

An application for mediation is, as a rule, made in writing or in person, but application by mail, fax, or online (through the website) is also possible.

▶ Required documents to submit

① Application for conciliation

A party to the medical dispute or their representative submits an application for conciliation to request conciliation.

② Commencement of the conciliation procedure

Conciliation begins only with the respondent's consent, but in serious cases such as death, the procedure commences automatically.

③ Appraisal division investigation

The facts are investigated through means such as hearing statements and requesting submission of materials in order to prepare an objective appraisal.

④ Preparation and delivery of the appraisal report

The appraisal report is prepared and submitted to the conciliation division within 60 days after conciliation commences, and may be extended by 30 days if necessary.

⑤ Conducting the conciliation session

The parties and interested persons attend and present their opinions, and the possibility of conciliation is explored in a closed session.

⑥ Settlement during the conciliation procedure

If a settlement is reached between the parties, a conciliation protocol is prepared and the procedure ends.

⑦ Conciliation decision

If there is no settlement, the conciliation division renders a conciliation decision within 90 days based on the appraisal opinion, and may extend this once by 30 days.

※ Automatic commencement of the conciliation procedure

Once mediation is established, it has the same legal effect as a judicial settlement from the point at which the authenticated copy of the mediation decision is served on the parties.

This means that, after mediation is established, a lawsuit cannot be filed with the court over the same matter, and it carries binding force equivalent to a judicial resolution of the dispute.

※ System of advance payment of damages

Parties to a medical dispute may apply for arbitration after agreeing in writing to abide by the arbitration decision of the mediation panel.

When applying for arbitration, it is not necessary to retain an attorney, and the party's legal representative, spouse, lineal ascendants or descendants, siblings, officers, or employees may also be appointed as an agent.

Unlike mediation, arbitration proceedings center on the facts of the medical practice and on expert appraisal, so the parties often participate directly.

① Application for arbitration

The parties agree to abide by the decision of the mediation panel and apply for arbitration.

② Selection of the mediation panel

By agreement of the parties, the mediation panel that will handle the arbitration is selected.

③ Investigation by the appraisal panel and preparation of the appraisal report

Statements from interested parties and witnesses are heard and the submission of materials is requested, and within 60 days after the commencement of the mediation procedure, an appraisal report is prepared and sent to the mediation panel. If necessary, this may be extended by up to 30 days.

④ Examination of the arbitration case

Oral hearings are conducted if necessary, except where the parties have agreed not to hold oral hearings.

⑤ Settlement during the arbitration procedure

If an agreement is reached between the parties during the arbitration, the arbitration procedure may be suspended and the content of the agreement may be prepared in the form of an arbitral award.

⑥ Arbitral award

Unless the parties reach an agreement, the mediation panel renders an arbitral award to conclude the dispute.

▶ Objection to and revocation of an arbitral award