Medical Negligence

Where medical negligence has occurred, the medical professional or medical institution may face the following legal issues.

Civil liability

Criminal liability

Dispute mediation

For the crime of occupational negligence causing death or injury through medical practice to be established, the physician must have committed occupational negligence amounting to a breach of the duty of care in the course of the medical practice, and that negligence must have caused the result of injury or death to the patient.

In addition, the causal relationship between that occupational negligence and the occurrence of the result must be proven by strict evidence beyond a reasonable doubt.

See Supreme Court Judgment of November 8, 1996, 95Do2710; Supreme Court Judgment of January 10, 2003, 2001Do3292; Supreme Court Judgment of April 28, 2011, 2010Do14102; and others

Where the crime of occupational negligence causing death or injury is established, a person may, under Article 268 of the Criminal Act, be subject to criminal punishment of imprisonment without labor or a fine.

As a professional who handles the life and health of patients, a medical practitioner has a duty of care to provide the best treatment suited to the patient's condition.

Negligence in treatment refers to a case in which a medical practitioner breaches that duty of care and fails to avoid a foreseeable risk or neglects necessary measures.

Whether a medical practitioner has fulfilled the duty of care is judged by the following criteria according to Supreme Court precedent.

Because medical treatment inherently involves a certain degree of risk, a medical professional has a duty of care to provide the patient with sufficient necessary information, such as the expected outcome, alternatives, and complications, before treatment or surgery.

Treatment carried out without explanation or a procedure performed without consent is regarded as a violation of the medical professional's duty to explain, and the medical professional may bear legal liability for any harm resulting from it.

It also includes an explanation of the lifestyle guidelines and precautions the patient must follow after treatment, and in some cases the explanation may be given indirectly through a family member.

Where a medical professional fails to faithfully perform even the basic duty of care and provides treatment so perfunctory that it is difficult to tolerate under generally accepted social norms, this may itself be regarded as unlawful medical conduct.

Where the treatment attitude reaches a level that cannot be socially tolerated in this way, the medical professional may bear tort liability, and this serves as a basis for the patient or the bereaved family to claim consolation money for emotional harm.

In practice, the Supreme Court has held that if a patient suffered emotional distress due to markedly unfaithful treatment, an award of consolation money is possible.(Supreme Court Decision 2004Da61402, decided September 28, 2006)

1. Liability for default (Article 390 of the Civil Act)

2. Liability for tort (Article 750 of the Civil Act)

In medical malpractice litigation, the court focuses most heavily on whether the medical practitioner fulfilled the duty of care and the causal relationship between the negligence and the harm.

Because liability for damages is recognized only when both requirements are proven, a medical institution should secure grounds for legal response through management of medical records and procedures.

Where certain circumstances exist, a court may partially limit a medical professional's liability and adjust the amount of damages.

Representative grounds for reduction of amount are as follows.

1. Where patient-related factors affected the accident

2. Where circumstances such as the uncertainty of the medical procedure were taken into account

A settlement related to a medical accident constitutes a compromise contract under Article 732 of the Civil Act, a contract in which both parties agree to make mutual concessions and conclude the dispute.

A settlement need not be made in writing, but in order to prove the existence and content of the settlement, preparing a specific and clear written document is recommended.

If possible, it is advisable to obtain the advice of a legal professional or to use the court's “judicial compromise” system.

Where the patient is an adult with decision-making capacity, the patient must personally participate in the settlement.

Where a representative such as a family member participates in the settlement, it must be proven that clear authority to act as a representative was delegated by the patient, and related documents such as a power of attorney and a seal certificate are required.

A settlement concluded without authority of representation may be void, so the medical institution must confirm whether such authority exists during the process of concluding the settlement.

A simple settlement agreement alone does not allow compulsory execution.

To carry out compulsory execution based on the content of a settlement, you must secure an enforcement title such as a judgment or a payment order.

However, where a notarial deed includes a clause consenting to compulsory execution, compulsory execution is possible immediately.

To enhance the expertise of medical cases and ensure proper adjudication, the Seoul Central District Court has designated two panel benches and three single-judge benches among its civil benches as dedicated benches for medical cases.

When a medical negligence lawsuit is filed, the relevant dedicated bench handles the case, and after the case is assigned, the medical institution should promptly proceed with preparing materials for submission to the court and designating the attorney in charge.

After the complaint is filed, the issues are organized and evidence is examined in the pleading preparation procedure handled by a single judge.

The medical institution responds to the plaintiff's claims by submitting materials such as a treatment record and an answer, and where necessary, it should clarify its legal position through additional written opinions.

When the pleading preparation procedure is concluded, the case may end through a pronouncement of judgment or a settlement at a pleading date or a mediation date.

To support its position, a medical institution should prepare the following materials.

• Medical records and a translation

The plaintiff obtains a copy of the medical records from the hospital or applies to the court for an order to produce them, and, where foreign-language technical terms are included, a translation must also be submitted.

• Medical literature

To prove relevant medical knowledge to the court, medical textbooks, papers, and the like are submitted, and the cover and back must also be copied and submitted so that the date of publication, the author, and the publisher can be confirmed.

For foreign-language materials, the important parts must be underlined and a translation must be included.

• Inquiry into facts and expert appraisal

Where necessary, the court conducts an inquiry for an expert appraisal opinion and an inquiry into facts in order to confirm medical knowledge and the facts, and the parties must prepare content tailored to the issues.

• Physical appraisal

Where the patient has not died, a physical appraisal is conducted to determine matters related to physical condition, such as the location and degree of disability, the rate of loss of working capacity, and future treatment costs.

Absent special circumstances, it is advisable for the plaintiff to apply for a physical appraisal at the early stage of the litigation.

• Appraisal of medical records

An appraisal of medical records is a procedure for seeking an expert's judgment, based on the medical records and other documents, on whether the medical staff's measures were appropriate.

It is appropriate to conduct it after the issues have become clear, and the two sides often each apply for it.

After the preparatory proceedings for pleading are concluded, in cases handled by a panel, the pleading proceeds with three judges, while in cases handled by a single judge, one judge conducts the pleading.

In the pleading, examination of evidence is often carried out sufficiently during the preparatory proceedings, so the matter frequently proceeds without further examination; however, there are also cases in which the person who prepared the appraisal report is summoned as an expert witness to provide an explanation.