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Damages for Medical Accidents

If a claim for damages arising from a medical accident is filed, the medical professional should prepare a systematic legal response based on the question of negligence and the scope of liability.

CONTENTS
  • 1. Damages for Medical Accidents | Concept
    • - What Is a Medical Accident?
  • 2. Damages for Medical Accidents | Legal Basis
    • - Liability for Non-Performance (Civil Act Article 390)
    • - Tort Liability (Civil Act Article 750)
    • - Requirements for Establishing Liability for Damages
  • 3. Damages for Medical Accidents | Negligence and the Duties to Explain and Exercise Care
    • - Meaning of Medical Negligence
    • - Violation of the Duty to Explain and Legal Liability
    • - Standards and Sanctions for the Legal Duty to Explain
    • - Criteria for Determining a Breach of the Duty of Care
  • 4. Damages for Medical Accidents | Methods of Response
    • - Verification of Facts and Records
    • - Caution Against Premature Settlement and Admission of Liability
    • - Preparing for Criminal Complaints and Accusations
  • 5. Damages for Medical Accidents | Importance of Strategy

1. Damages for Medical Accidents | Concept

Where harm resulting from a medical accident is at issue, the medical practitioner or medical institution may be held liable for damages on the basis of civil liability for nonperformance of an obligation or tort liability, depending on whether the medical practitioner was at fault.

What Is a Medical Accident?

A medical accident refers to a case in which a medical professional fails to fulfill the duty of care in the course of treatment, resulting in physical or mental harm to the patient.

This may arise from intent or negligence, and when harm is caused to a patient's health, life, or body, it may lead to a legal dispute.

2. Damages for Medical Accidents | Legal Basis

A patient client's claim for damages from a medical accident

Disputes over damages from a medical accident are determined on the basis of Article 390 (non-performance of obligation) and Article 750 (tort) of the Civil Act, and the scope of the legal liability of the medical practitioner or medical institution is examined in detail.

Where a medical contract has been concluded and performance of the contractual duty to provide treatment is at issue, non-performance liability is examined; where, independently of the contract, a breach of the medical practitioner's duty of care is at issue, tort liability is examined.

Liability for Non-Performance (Civil Act Article 390)

A medical practitioner bears a contractual obligation to provide medical services to the patient under the treatment contract, and even after receiving the medical fee and commencing treatment, the practitioner must observe the duty of care and the duty of faithful performance required under the medical contract.

Where these duties are not fulfilled, the conduct may be assessed as non-performance of obligation regardless of the treatment outcome, and liability for damages may arise for the practitioner or the medical institution.

Tort Liability (Civil Act Article 750)

Where, in the course of a medical procedure, a medical professional fails to fulfill the duty of care ordinarily expected, this may be assessed as a tort.

Even where no medical contract exists, if harm results to a patient from a medical professional's breach of the duty of care, liability for damages may become an issue.

Requirements for Establishing Liability for Damages

For liability for damages to be established under the Civil Act, all four of the following requirements must be satisfied.

① Negligence of the medical practitioner
The standard for judgment is whether the medical practitioner failed to exercise the ordinary duty of care during the course of treatment.

② Illegality (infringement of rights)
The act that infringed legal interests such as the patient's life, body, or health must be found to be unlawful.

③ Occurrence of harm
The patient must have actually suffered physical or psychological harm.

④ Existence of a causal relationship
There must be a direct causal relationship between the medical practitioner's negligence and the harm suffered by the patient.

When a medical accident occurs, a medical practitioner may wish to develop a strategy to minimize the scope of liability by securing sufficient medical records, gathering objective evidence, and responding procedurally.

3. Damages for Medical Accidents | Negligence and the Duties to Explain and Exercise Care

Defense of a medical professional client in a medical malpractice damages claim

A claim for medical accident damages is established not by mere dissatisfaction with the treatment outcome but only when the medical professional's negligence and breach of legal duty are proven.

This includes not only a breach of the duty of care during the course of treatment but also a breach of the duty to explain, where the patient was not provided with sufficient information necessary before treatment.

Meaning of Medical Negligence

Medical negligence means a case in which medical personnel fail to exercise the duty of care required at the ordinary level of medical practice, resulting in damage.

For example, it presupposes that the medical personnel's conduct fell short of the general standard, as where the patient's condition was overlooked or a mistake was made during surgery.

For negligence to be recognized, whether objectively assessable damage such as death, injury, or delayed treatment actually occurred is at issue, and it must be objectively shown that the cause lay in the medical personnel's carelessness.

Violation of the Duty to Explain and Legal Liability

A medical practitioner must provide the patient with sufficient necessary information during the treatment process and obtain the patient's consent.

This duty to explain goes beyond mere guidance and means providing information so that the patient can autonomously decide whether to undergo treatment.

The duty to explain is broadly divided into three types.

① Informative explanation
Explanation of the diagnosis, test results, and the like to guarantee the patient's right to know

② Advisory explanation
Guidance on the treatment method, side effects, and the like before a medical act that may carry a risk to the outcome, such as surgery or a procedure

③ Instructional explanation
Provision of information on precautions needed after discharge or related to the prognosis

Whether the duty to explain was fulfilled becomes a key issue in a dispute, and depending on whether the scope and method of the explanation were appropriate, the scope of the medical practitioner's liability may be limited or denied.

Standards and Sanctions for the Legal Duty to Explain

Under the Medical Service Act, for a medical procedure that has a serious effect on life or the body, such as surgery, general anesthesia, or a blood transfusion, the practitioner must clearly explain to the patient the key matters such as the diagnosis, the necessity of the procedure, the method, and the aftereffects, both orally and in writing, and must obtain consent.

A violation can result not only in civil liability for damages but also in an administrative fine of up to 3 million won.


In other words, where the explanation was merely formal, it may be assessed as an unfavorable circumstance in a dispute, so it is necessary to manage the content and method of the explanation so that they can be objectively proven.

Criteria for Determining a Breach of the Duty of Care

A medical professional's duty of care is not limited to a simple mistake, and it also includes cases in which, during the course of treatment, the professional foresaw the occurrence of a result yet did not take appropriate measures to prevent it.


Supreme Court precedent also assesses in detail whether a medical professional was negligent according to these criteria, and this is an important factor of judgment that is repeatedly applied in similar medical accident cases.

▶ Relevant precedent

In a medical malpractice case, to recognize a doctor's negligence, it must be possible to find that the doctor could foresee and could avoid the occurrence of the result yet failed to do so (see Supreme Court Decision 82Do3199, June 12, 1984, etc.), and in determining whether such negligence exists, the standard must be the degree of care of an ordinary, average person engaged in the same work and duties, and in doing so, the general level of medicine at the time of the accident, the medical environment and conditions, and the special nature of the medical procedure must be considered (see Supreme Court Decision 95Do2710, November 8, 1996, etc.).

4. Damages for Medical Accidents | Methods of Response

Areas of assistance by Daeryun LLC in medical accident damages matters

When a claim for damages arising from a medical accident is brought, the client or the medical institution may be significantly affected not only by civil liability for damages but also by the reputation of the medical practitioner and the operation of the medical institution, so a prompt and systematic response may be needed.

Verification of Facts and Records

A medical practitioner or medical institution should first carefully review the course of treatment and the circumstances of the medical act, and it is important to systematically organize the following related materials and to record the situation at the time the incident occurred.

· Medical records

· Test results

· Surgical records

· Informed consent forms, etc.

The objective materials secured serve as key evidence proving the absence of negligence by the medical practitioner and the lawfulness of the treatment provided.

Caution Against Premature Settlement and Admission of Liability

At the early stage of a dispute, a medical practitioner should not respond emotionally, nor should the practitioner, in an attempt to conclude the matter early, propose settlement money or make statements acknowledging liability.

Such conduct may later be interpreted in civil or criminal proceedings as circumstances in which the medical practitioner acknowledged their own fault, so the direction of the response should be decided only after sufficient consultation with a professional.

Preparing for Criminal Complaints and Accusations

In connection with a medical accident, even if a patient files a criminal complaint or accusation, it does not immediately lead to punishment or settlement.

A medical practitioner should refrain from emotional responses, respond calmly with a focus on the facts in accordance with the investigation procedure, and it is advisable to receive the assistance of a legal expert from the early statement stage.

5. Damages for Medical Accidents | Importance of Strategy

A dispute over damages for a medical accident is not simply a matter of contesting whether there was medical negligence, but a complex process that requires accurately assessing the scope of legal responsibility that a medical professional may bear and responding according to the prescribed procedures.

In particular, each major issue, such as the assessment of medical negligence, whether the duty to explain was fulfilled, and the causal relationship between the medical procedure and the harm, calls for specialized legal interpretation and a strategic response, and the outcome of the litigation can vary considerably depending on the securing of evidence and the application of the statutes.

To respond to medical accident damages cases, our firm forms a TF composed of attorneys experienced in each field and provides systematic support throughout the entire process, including handling evidence-gathering on the client's behalf, analyzing medical records, and pursuing settlement, mediation, and arbitration.

By closely reviewing the medical records, the medical professional's course of treatment, and the particular circumstances of the case, the firm assesses whether there was intent or negligence and the scope of responsibility, and it establishes a response strategy suited to the situation so that responsibility unfavorable to the medical professional is not expanded.

If you are considering a matter of medical accident damages, please feel free at any time to 🔗request the assistance of a medical specialist attorney.

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