CONTENTS
- 1. Medical Malpractice Damages Lawsuit | Definition
- 2. Medical Malpractice Damages Lawsuit | Litigation Procedure
- - How to Respond from the Plaintiff's Standpoint
- - How to Respond from the Defendant's Standpoint
- 3. Medical Malpractice Damages Lawsuit | Methods of Resolving Disputes
- - Resolution Through Mediation by the Korea Consumer Agency
- - Korea Medical Dispute Mediation and Arbitration Agency Mediation Procedure
- 4. Medical Malpractice Damages Lawsuit | How to Bring a Civil Claim
- - Requirements for Claiming Damages
- - Breach of the Physician's Duty to Explain and Duty of Care
- - Medical Dispute Civil Lawsuit Precedents
- 5. Medical Malpractice Damages Lawsuit | Points to Note
1. Medical Malpractice Damages Lawsuit | Definition
A medical malpractice damages lawsuit is a lawsuit claiming damages when a medical act performed by a medical institution or a medical professional leads, through carelessness or negligence, to physical or mental harm to a patient.
When a medical accident occurs due to the medical negligence of a medical professional, the patient may suffer serious harm.
A medical professional may be subject to criminal liability and an administrative disposition as a result of a medical accident.
Separately from this, liability for damages to the patient also arises.
2. Medical Malpractice Damages Lawsuit | Litigation Procedure
Let us review the procedure for a medical malpractice damages lawsuit.
1. Gathering photographic evidence and preparing an appraisal
-Securing medical records, surgical records, and similar documents
-Preparing to apply for an expert appraisal
2. Drafting the complaint and filing the suit
-Submitting the complaint to the court having jurisdiction
3. Exchange of answers and preparatory briefs
-The defendant's side defends by asserting the absence of medical negligence or the victim's fault
4. Conducting the appraisal procedure
-An appraisal report is submitted through a medical appraisal institution designated by the court
5. Conducting oral argument dates and examination of evidence
-Reviewing both sides' assertions and evidence, and conducting witness examination if necessary
6. Pronouncement of judgment
-Determining whether liability for damages exists and the amount of the award
How to Respond from the Plaintiff's Standpoint
The person who brings a medical malpractice damages claim, that is, the plaintiff, is the patient who was harmed by the medical accident.
In this case, the burden of proving the circumstances in which the medical accident occurred and the medical professional's negligence in the medical accident lies with the plaintiff.
The plaintiff must therefore directly prove that the harm arose from negligence or carelessness occurring during the medical act, and must also specifically prove the harm that occurred.
-Securing medical records: medical records, surgical records, nursing logs, and similar documents may be requested legally
-Requesting an expert appraisal: securing probative value through an appraisal of the medical negligence and the causal relationship
-Calculating the loss: calculating treatment expenses, future treatment expenses, consolation money, lost income, and similar items
-Retaining a legal representative: given the burden of proof, the assistance of an attorney specializing in civil and damages matters is necessary
How to Respond from the Defendant's Standpoint
The defendant in a medical malpractice damages case is the medical institution or medical professional that caused the medical accident.
The defendant must bear legal responsibility for the harm caused by the medical accident and has a duty to pay damages to the victim.
Of course, the burden of proof lies with the plaintiff, the patient, but that does not mean the defendant should respond complacently.
-Proving the absence of medical negligence: asserting whether the average duty of care of a medical professional of the same kind was fulfilled
-Securing an expert opinion: securing expert advice to prove that the treatment was appropriate
-Asserting the victim's fault: presenting fault on the patient's side, for example where the patient ignored the medical staff's explanation
-Retaining a legal representative: an attorney for a strategic response in the civil lawsuit
3. Medical Malpractice Damages Lawsuit | Methods of Resolving Disputes
Let us review the methods of resolving disputes related to a medical malpractice damages lawsuit.
Resolution Through Mediation by the Korea Consumer Agency
A victim of a medical accident may resolve the dispute through the mediation procedure of the Korea Consumer Agency.
The Korea Consumer Agency is a specialized institution established by the state to protect consumers' rights and interests, improve consumer life, and contribute to the development of the national economy.
This agency carries out the handling of consumer complaints and consumer redress.
✅ Conditions for commencing the mediation procedure
If no agreement is reached within 30 days after a consumer or a consumer organization requests redress, the Korea Consumer Agency may request mediation from the Consumer Dispute Mediation Committee.
However, mediation related to a medical accident is available only at either the Korea Consumer Agency or the Korea Medical Dispute Mediation and Arbitration Agency.
An application for mediation cannot be made to both institutions at the same time.
Medical dispute mediation proceeds through the following procedure.
1. Request for mediation
If no agreement is reached after the request for redress, an application for mediation is made
2. Composition of the mediation committee
The Consumer Dispute Mediation Committee, composed of one chairperson and no more than 150 members, takes on the case.
3. Review of the case
The case is reviewed objectively through fact investigation, testing, expert consultation, and similar methods
4. Dispute mediation meeting
The members gather to deliberate on the case and resolve on a mediation proposal
5. Mediation decision
The mediation proposal is notified to the parties, and their acceptance is confirmed
When mediation is established, it has the same effect as a court judgment.
If mediation is established but the other party does not perform the terms of the mediation, the creditor may obtain an execution clause from the court having jurisdiction and carry out compulsory execution.
In other words, a procedure that legally compels the other party to perform the terms of the mediation becomes possible even without a lawsuit.
Korea Medical Dispute Mediation and Arbitration Agency Mediation Procedure
The Mediation and Arbitration Agency is a public institution established to resolve disputes arising from medical accidents promptly and fairly.
When a dispute related to a medical accident arises, not only the victim but also a legal representative, spouse, lineal ascendant or descendant, sibling, attorney, or a person who has received a written delegation may apply for mediation.
An application for mediation may be made in writing, in person, by mail, by fax, or online through the website.
At the time of application, in addition to the mediation application form, a copy of the applicant's identification, a copy of a bankbook, an explanatory statement of the circumstances of the medical accident, and similar documents are required, and if a representative applies, a letter of delegation and documents proving the relationship must additionally be submitted.
When mediation is established, its effect is regarded as a "judicial settlement" identical to a court judgment.
In other words, a lawsuit cannot be filed again over the same case, and compulsory execution is also possible based on the mediation protocol.
In addition, if the respondent does not pay the damages award even though a mediation decision has been rendered, the victim may respond by first receiving the award through the Mediation and Arbitration Agency's "damages award advance payment system," after which the Mediation and Arbitration Agency exercises a right of reimbursement against the wrongdoer.
4. Medical Malpractice Damages Lawsuit | How to Bring a Civil Claim
Let us review how to bring a civil claim in a medical malpractice damages lawsuit.
If harm has occurred to a patient due to negligence in the course of a medical professional's treatment, the patient's side may claim damages through a civil lawsuit.
In this case, legally, liability for "non-performance of an obligation" or "tort" may be pursued.
1. Liability for non-performance of an obligation (Article 390 of the Civil Act)
A contract to provide treatment (a medical contract) exists between the medical professional and the patient. If the medical professional fails to properly perform the obligation under this contract, that is, the obligation to treat the patient appropriately, the patient may claim damages on the basis of liability for non-performance of an obligation.
2. Tort liability (Article 750 of the Civil Act)
If harm occurs during a medical act because the medical professional did not exercise the duty of care, this is regarded as a tort and damages may be claimed. For example, this applies where an organ is damaged through carelessness during surgery, or where a side effect that should have been noted was not explained.
Requirements for Claiming Damages
To claim damages for a medical accident, all of the following four requirements must be satisfied.
2. Illegality: where the patient's rights, such as life, body, and health, are infringed
3. The occurrence of loss: where actual loss, such as physical harm or deterioration of health, has occurred
4. Causal relationship: that there is a direct connection between the medical professional's negligence and the loss
All four of these must be proven for liability for damages to be recognized in court.
Breach of the Physician's Duty to Explain and Duty of Care
▶Breach of the duty to explain
A physician has a duty to fully explain to the patient the diagnostic results, the treatment method, the prognosis (the course after treatment), side effects, and similar matters.
This is because the patient has the right to decide whether to undergo treatment based on such information.
If this duty to explain is breached, the medical staff may bear liability for damages such as consolation money.
Category | Content of the explanation |
Disclosure explanation | An explanation for the patient's right to know, such as the name and condition of the illness |
Advisory explanation | In the case of surgery or treatment with side effects, an explanation to assist autonomous choice |
Guidance explanation | Advice for the patient to maintain health, such as precautions after discharge |
※ Even if the advisory duty to explain and the guidance duty to explain are breached, the medical staff may bear liability if loss has occurred.
In addition, in the case of important medical acts such as surgery, blood transfusion, and general anesthesia, the physician must explain the following matters in writing in advance and obtain consent
-The diagnosis
-The necessity and method of the surgery or similar procedure
-The name of the principal medical professional
-Side effects that may typically occur
-Matters the patient must observe before and after surgery, and similar items
If the explanation is not given or written consent is not obtained, an administrative fine of up to 3 million won may be imposed.
▶Breach of the duty of care
A physician must fulfill the duty of care that an average physician would naturally have exercised. A breach of this gives rise to civil liability for damages.
A physician's duty of care is divided as follows.
-The duty to foresee results: the responsibility to grasp in advance the possibility that a bad result will occur
-The duty to avoid results: the responsibility to take the measures necessary to avoid that risk
For such a breach of the duty of care to be recognized, the judgment is made at the level of a general physician performing the same duties, taking into account ▲the level of medicine at the time, ▲the treatment environment, and ▲the special characteristics of the medical act.
Medical Dispute Civil Lawsuit Precedents
| Case 1. Death from a brain hemorrhage after a fall during an examination… Supreme Court: "The medical staff breached the duty of care" A patient suddenly fell while undergoing a chest X-ray examination at a hospital, and although the patient subsequently showed signs of convulsions, the medical staff administered only anticonvulsants and confirmed the brain hemorrhage only the next day. The patient underwent surgery but ultimately died. The Supreme Court held that, considering the patient's condition and the circumstances of the accident, the medical staff's failure to take appropriate measures despite being aware of the possibility of a brain hemorrhage was a breach of the duty of care. Issues: -Whether the medical staff's response to the convulsion symptoms after the fall was appropriate -Whether the circumstances were sufficiently conveyed to the medical staff who took over the patient's condition -The standard for the medical professional's duty of care: whether the general level of measures required in the clinical setting at the time was taken |
| Case 2. Ignoring warning signs of cerebral vasospasm… patient in a vegetative state, Supreme Court: "Medical staff negligence recognized" A patient hospitalized for a ruptured cerebral aneurysm showed signs of cerebral vasospasm, yet the medical staff neglected to monitor the patient's progress, discontinued the administration of nimodipine, and transferred the patient to a general ward, after which they did not take immediate measures despite abnormal symptoms, and the patient fell into a vegetative state. The Supreme Court held this to be negligence amounting to a breach of the duty of care. Issues: -The fact that appropriate measures were not maintained or strengthened even after cerebral vasospasm was confirmed radiologically -The appropriateness of the decision to transfer the patient from the intensive care unit to a general ward -Whether the failure to respond immediately to the patient's abnormal reactions (a comatose state, rigidity of the limbs, and similar symptoms) can be regarded as negligence |
5. Medical Malpractice Damages Lawsuit | Points to Note
Let us review the points to note when pursuing a medical malpractice damages lawsuit.
▶Burden of proof:
Because the patient (plaintiff) side must prove the medical negligence and the causal relationship, accurate collection of evidence is the key
▶Whether the physician's duty to explain was breached:
A claim for consolation money is possible if any one of the disclosure, advisory, or guidance duties to explain is breached
▶The importance of an expert appraisal:
Because it has a major impact on the outcome of the lawsuit, an active response to the process of preparing the appraisal report is necessary
▶Extinctive prescription:
The suit must be filed within 10 years from the date the medical act ended, and within 3 years from the date the loss and the wrongdoer became known
A medical malpractice damages lawsuit is a field that requires far higher expertise than an ordinary civil lawsuit.
The outcome of the lawsuit depends on whether medical negligence exists, the causal relationship, and proof of the loss, which require both medical expertise and legal analysis.
A plaintiff who wishes to claim damages against a medical institution needs thorough collection of materials and an expert appraisal, while the defendant medical institution must establish a legal defense theory and prove the legitimacy of the medical act.
Both sides therefore benefit from receiving the assistance of a civil litigation attorney with extensive experience handling numerous medical lawsuits.
Our firm has many specialists by field who have handled numerous medical accident cases, and through a task force response, we work to derive a more favorable resolution in complex medical disputes.
We operate branch offices in regions throughout the country and provide a 365-day, 24-hour urgent consultation system as well as a non-face-to-face video consultation service, so please reserve a consultation by whichever method is convenient for you.
