Medical Civil Matters

The most representative type of medical civil litigation is a claim for damages that a patient who has suffered a medical accident due to medical negligence files against a medical professional.

Apart from this, there are cases in which a medical professional may also hold a patient liable in medical civil terms.

For example, there are claims for damages due to assault against a medical professional, claims for damages due to destruction of a medical institution's equipment, claims for damages due to other harm, and lawsuits claiming payment from a patient who delays paying surgery or treatment costs.

▶ Where a medical civil lawsuit is filed

The mediation procedure of the Korea Consumer Agency proceeds through the following stages, and the procedure as a whole is operated transparently and systematically on the basis of the "Framework Act on Consumers."

1. Request for Mediation

Where a medical consumer has applied to the Korea Consumer Agency for damage relief but has not reached an amicable settlement, the consumer may formally request dispute mediation from the Consumer Dispute Mediation Committee.

2. Composition of the Committee

The Consumer Dispute Mediation Committee is composed of up to 150 members, including one chairperson, and a mediation meeting is attended by 3 to 11 members, including the chairperson or a standing member, to deliberate on the case.

3. Fact-Finding and Advisory Review

Before rendering a mediation decision, the Committee may, where necessary for an objective judgment, additionally carry out procedures such as fact-finding, testing and inspection, and advisory review by an expert committee.

4. Holding of the Mediation Meeting

The Committee comprehensively reviews the materials submitted by both parties and the results of the investigation, and holds a mediation meeting to deliberate on and resolve the mediation proposal.

5. Notification of the Mediation Decision

Once the mediation proposal is resolved, the content of the decision is notified to both parties, and each party must respond in writing as to whether it accepts within 15 days from the date of receiving the notification.

Where there is no separate expression of intent within that period, the mediation is deemed to have been established as a matter of law.

When conciliation is established, it is recognized as having the same effect as a judicial settlement.

Where both parties accept the conciliation result of the Consumer Dispute Settlement Commission, that conciliation has the same effect as a judicial settlement under Article 67(4) of the Framework Act on Consumers.

In addition, if no expression of intent regarding acceptance is made within 15 days, the conciliation is deemed to have been automatically established.

After conciliation is established, litigation can no longer be filed regarding that matter.

As a rule, the procedure is concluded within 30 days.

Under the Framework Act on Consumers, dispute conciliation must, in principle, be completed within 30 days from the date of the request for conciliation, and the period may be extended where there are unavoidable circumstances.

This rapid processing period serves as a significant advantage for consumers who wish to respond promptly to a medical civil dispute.

A party to a medical dispute or a legally recognized representative may apply for mediation.

The persons who may file an application for mediation with the Mediation and Arbitration Agency are the patient (victim) in person, a legal representative, a spouse, a lineal ascendant or descendant, a sibling, an officer or employee of a health care institution, an attorney, or a representative duly authorized under the legal requirements.

This is a system that broadly recognizes representatives, taking into account that, given the nature of medical civil disputes, direct response may be difficult due to physical or mental harm.

The application must be filed within a certain period from the time the medical accident occurred or from the time the harm was recognized.

An application for conciliation is possible until whichever of the above periods arrives first, and since it functions similarly to extinctive prescription, caution is required.

An application for mediation can be made not only in writing or in person, but also online, by mail, and by fax.

When applying for mediation, in addition to the medical dispute mediation application form, related supporting documents must be submitted together, and in the case of an application by proxy, a power of attorney and documents proving the agent relationship are also required.

The required attachments include a copy of an identification document, a copy of a bankbook, a consent form for sensitive information, and a statement of circumstances.

1. Application for mediation

A party or its representative submits an application for mediation to the Mediation and Arbitration Agency to begin the procedure.

2. Commencement of mediation proceedings

When the respondent expresses consent, the mediation proceedings commence, and where certain requirements are met, they commence automatically without consent.

3. Investigation by the appraisal division

To ascertain the facts of the dispute, the hearing of statements from interested parties, requests for the submission of materials, on-site investigation, and similar measures are carried out.

4. Preparation and transmission of the appraisal report

Within 60 days (up to 90 days) after the commencement of the procedure, an appraisal report is prepared and transmitted to the mediation division.

5. Holding of the mediation date

A closed mediation date is held with the parties and interested parties present, and the mediation division deliberates on the case.

6. Settlement during mediation

If a voluntary settlement is reached between the parties during the procedure, the mediation proceedings end, and a mediation protocol is prepared in accordance with that content.

7. Mediation decision

Where no settlement is reached, the mediation division decides on a mediation proposal based on the appraisal result, and in principle the decision is rendered within 90 days from the commencement date.

In the case of a medical accident in which serious harm has occurred, conciliation is automatically commenced even without the consent of the parties.

In the following cases, the conciliation procedure begins automatically regardless of the intent of the respondent.

※ However, some cases, such as those combined with a preexisting disability, are excluded from automatic commencement.

Once conciliation is established, it has the same legal binding force as a judicial compromise.

Where both parties agree to the conciliation decision, or where they receive the written decision without raising an objection within a set period, the conciliation has the same effect as a judicial compromise.

As a result, the legal dispute can be concluded without a separate lawsuit, and a lawsuit cannot be filed again over the same matter.

Damages may be claimed under the Civil Act for a medical professional's nonperformance of an obligation or tort.

▶ Liability for nonperformance of an obligation (Civil Act, Article 390)

▶ Tort liability (Civil Act, Article 750)

※ Both forms of liability require proof of the physician's intent or negligence, illegality, the occurrence of harm, and causation.

When filing a civil lawsuit, a complaint that meets the requirements must be prepared.

1. Information on the parties and their agents

• The names (designations) and addresses of the plaintiff and the defendant

• The name and address of the legal representative or litigation agent

2. Indication of the case

The nature of the claim must be clearly shown, as in "Action for damages arising from a medical accident."

3. Purport of the claim

The content of the judgment that the plaintiff seeks to obtain from the court is stated.

Example: "The defendant shall pay to the plaintiff the sum of 30 million won and the delay damages thereon."

4. Cause of the claim

The circumstances in which the damage occurred, the content of the defendant's negligence, the fact of harm, and the like must be described in detail according to the five Ws and one H.

5. Indication of supporting evidence and attached documents

It is sufficient to submit medical records, an appraisal request, photographic materials, recordings, and the like that can support the asserted facts, together with evidence labels such as "Plaintiff's Exhibit No. 1, copy of medical records" and "Plaintiff's Exhibit No. 2, appraisal request."