Medical Dispute Settlement

A medical dispute refers to a conflict or dispute arising with a patient over whether liability exists and its scope, where the occurrence of harm becomes an issue in connection with a medical act by a health and medical professional, such as diagnosis, examination, treatment, or drug prescription and dispensing, or in connection with the treatment process of a medical institution.

In other words, it refers to a situation in which the patient's side and the medical professional or medical institution dispute, over harm arising in the course of medical care, whether liability exists or the scope of damages.

A medical act includes procedures in which a medical practitioner directly intervenes inside the patient's body according to professional judgment, such as drug administration, incision, and surgery.

Such measures are performed for the purpose of treatment, but they have a special character that distinguishes them from ordinary acts in that, by the very nature of a medical act, a certain degree of risk is inevitably involved.

A medical act is, in essence, performed for the purpose of protecting the patient's life and treating disease.

Therefore, if a medical practitioner appropriately performed treatment while fulfilling the duty of care required under the medical standards and treatment environment of the time, the mere fact that the outcome fell short of expectations may make it difficult to immediately recognize the medical practitioner's legal liability.

By their nature, the results of medical practice are difficult to predict as always being the same.

Even for the same treatment or surgery, unexpected side effects or results can occur depending on the following medical factors.

This uncertainty serves as a key factor in determining the scope of the medical professional's liability in a medical dispute.

A medical practitioner has professional discretion to select the examination method, the timing of treatment, and the treatment plan, taking into account the patient's symptoms, changes in the condition, the treatment environment, and other relevant factors.

Even for the same disease, multiple medical options often exist in clinical practice, and a medical practitioner reasonably selects one of them in carrying out treatment.

Therefore, if the practitioner did not significantly deviate from the medical standards and procedures at the time of treatment, it may be somewhat difficult to evaluate the practitioner's judgment as fault merely on the ground that, in hindsight, another option was available.

Medical practice requires a high degree of medical knowledge and skill, and the patient is generally placed in a structure in which they have no choice but to rely on the judgment of the medical practitioner.

As a result, medical disputes have the particular characteristic that expert appraisal or consultation is essentially required, more so than in ordinary legal disputes.

Core materials related to a medical act, such as medical records, test results, and imaging data, are prepared, kept, and managed by the medical institution in accordance with statutes.

As a result, in a medical dispute a structure is formed in which the medical institution must explain and substantiate the course of treatment and the decision-making process through records and materials, and the appropriateness of this management of materials functions as an important factor in the determination resolving the dispute.

A private settlement is a procedure in which the patient and the medical institution resolve a dispute through mutual agreement, without the involvement of a third party.

It is used mainly in cases where the scale of harm is not large or the dispute over legal liability is not significant, and it proceeds by the hospital proposing a certain monetary compensation to the patient after an internal review or attorney consultation, with the patient agreeing to it.

This approach has the advantage of a short time to dispute resolution and a simple procedure, but the following risks exist.

Using liability insurance that the medical institution has taken out in preparation for medical accidents, or a medical liability mutual aid association, is also a representative means of settlement.

When an insured party notifies the insurer of an accident upon the occurrence of a medical accident, a loss adjuster reviews the facts and the medical issues and calculates whether there was negligence and the amount of loss.

If it is determined that there was negligence, the insurer presents the scale of compensation to the patient and, upon obtaining consent, the insurance proceeds are paid, which can bring the dispute to a close without a legal dispute.

This method has the following advantages.

However, taking out insurance entails certain costs, and it is necessary to confirm the insurance's coverage limit and scope of application clearly in advance.

The hospital director, together with the attending physician, the administration department, and other relevant departments, should carefully review the medical records to accurately grasp the course of treatment.

In addition, the director should seek the advice of the attending medical staff and external legal and medical experts to assess whether there is civil or criminal liability, and should decide whether to settle and the amount, taking into account the patient's disposition and the circumstances.

In this process, the person responsible for the settlement should be unified to make the channel of communication with the patient's side clear, and the possibility of recording during conversations should also be kept in mind.

If, based on the medical records, it is determined that there was no medical negligence or breach of the duty to explain, the hospital should strongly assert exemption from liability or conclude the matter through waiver of treatment costs or payment of consolation money on condition of a settlement agreement barring re-litigation.

Conversely, where medical negligence is recognized, it is important to calculate an appropriate settlement amount taking into account the victim's loss of income, reduced earning capacity, preexisting conditions, treatment costs, and the like.

In addition, a settlement agreement must be prepared in anticipation of the National Health Insurance Service's claim for reimbursement of healthcare benefits by way of subrogation, and in disputes involving traffic accident or industrial accident patients, the option of pursuing litigation against the insurer should also be explained to the patient.

At the time of settlement, confirm whether the extinctive prescription has been completed, and be sure to include a covenant not to sue again.

If free treatment is provided to a patient in a medical dispute without a covenant not to sue, it may, depending on the case, be interpreted as an acknowledgment of debt or a waiver of the benefit of prescription, which can be disadvantageous to the hospital.

In particular, where the patient has died, all heirs must be included in the covenant not to sue, and when settling with only one representative of the patient, the relationship of authority to act as agent must be clearly indicated by signature and seal.

Because additional damages claims may arise at the time of settlement, it is recommended that the settlement agreement include a statement that the patient will not pursue any civil or criminal liability, together with sufficient explanation regarding foreseeable after-effects and the content of the settlement.

This is a measure to minimize the uncertainty of a settlement concluded at a time when the scope of loss is difficult to ascertain precisely.