CONTENTS
- 1. The Client Who Sought Help From a Medical Malpractice Attorney
- - Damages Resulting From Medical Malpractice
- - A Physician's Duty of Care and Duty to Explain
- - Precedents Concerning Medical Malpractice
- 2. The Process by Which a Medical Malpractice Specialist Attorney Proved the Harm
- - Argument of Negligence in Pre-Surgical Treatment Judgment
- - Argument of Negligence Due to Insufficient Safety Measures During Surgery
- - Neglect of Post-Surgical Observation and Response
- - Calculation and Claim of the Amount of Damages
- 3. Result of the Medical Malpractice Specialist Attorney's Assistance: Mediation of a 100 Million Won Settlement for Medical Malpractice Harm
- - Have You Suffered Medical Malpractice?
1. The Client Who Sought Help From a Medical Malpractice Attorney
This is the case of a client who sought help from a medical malpractice attorney.
The client had regularly complained of intermittent shortness of breath and chest tightness. At General Hospital B, the client received a diagnosis indicating the possibility of a tumor in the lung area and was advised to undergo detailed examination.
The hospital recommended thoracoscopic surgery to remove the tumor, explaining that it was safe and allowed for quick recovery, and the surgery was subsequently performed.
However, beginning immediately after the surgery, the client's shortness of breath and chest pain worsened, and a follow-up examination confirmed that a combination of conditions had occurred, including partial lung damage, pleural perforation, intrathoracic bleeding, and infection.
As a result, the client had to undergo prolonged ventilator treatment, and a portion of the client's lung function was permanently impaired.
Having doubts about the course of treatment and the circumstances under which the complications arose, the client requested a consultation with Daeryun LLC.
Daeryun LLC responded to the client's case with a team centered on attorneys with experience at the Korea Medical Dispute Mediation and Arbitration Agency, attorneys holding pharmacist and oriental medicine doctor qualifications, and attorneys with experience providing legal advisory to medical institutions, hospitals, and clinics.
Damages Resulting From Medical Malpractice
If medical treatment causes an unexpected adverse effect or a worsening of one's condition, the patient or guardian may bring a civil claim for damages.
▶Legal basis
-Liability for non-performance: where the medical staff failed to fulfill their obligations under the treatment contract (Article 390 of the Civil Act)
-Tort liability: where a duty of care was breached during the medical treatment (Article 750 of the Civil Act)
▶Matters to be proven
-Negligence of the medical practitioner: unnecessary procedures, lack of care, insufficient explanation, etc.
-Illegality: whether the patient's rights were infringed
-Occurrence of harm: aftereffects, additional treatment costs, mental suffering, etc.
-Causation: a direct connection between the medical treatment and the harm
Liability for damages is legally recognized only when all four of these requirements are satisfied.
A Physician's Duty of Care and Duty to Explain
Medical staff must observe the following obligations during the course of treating a patient.
▶Duty of care
-They must exercise the level of care that a typical medical practitioner would exercise
-For example, they must prevent damage to organs and tissue during surgery and anticipate and respond to the possibility of adverse effects
-If they neglect this and an accident occurs, liability for damages arises
▶Duty to explain
Medical staff must provide sufficient information so that the patient can decide for themselves whether to undergo treatment.
Type of duty to explain | Content of explanation | Liability upon breach |
Notification explanation | Diagnosis, condition, test results, etc. | Infringement of the patient's right to know
|
Advisory explanation | Surgical method, adverse effects, prognosis, etc. | Damages, including consolation money (solatium) |
Guidance explanation | Precautions after discharge, etc. | Damages for failure to notify a foreseeable risk |
Precedents Concerning Medical Malpractice
▶Failure to notify the change of operating surgeon and insufficient time recognized as a breach of the duty to explain
In a lawsuit brought by the bereaved family of a patient who died during a procedure for an unruptured cerebral aneurysm, the Seoul Northern District Court did not find negligence in the procedure or in the post-procedure care. However, citing the fact that the consent form was obtained one day before the procedure without specifically informing the family of the changed operating surgeon and without allowing sufficient time, the court ordered the hospital to pay 12 million won in consolation money (solatium).
Issues:
-The duty to specifically notify of the change of operating surgeon
-The duty to allow an 'adequate amount of time' before the procedure
Death from dating violence and medical malpractice, joint liability of the assailant and the physician
In a case where a victim of dating violence died as a result of medical malpractice, the Gwangju High Court held that the assailant, the physician who performed the procedure, and the university hospital were jointly liable for damages.
During the insertion of a central venous catheter, an artery was punctured, causing massive bleeding that resulted in the victim's death, and the court recognized both the physician's breach of the duty of care and the assailant's act of assault as causes.
The court of first instance limited liability to 60 percent, which the appellate court raised to 70 percent in ordering compensation.
Issues:
-The scope of the medical staff's duty of care when inserting a central venous catheter
-Whether the assault and the medical negligence constituted a joint tort
-The basis for calculating the joint liability ratio (70 percent)
2. The Process by Which a Medical Malpractice Specialist Attorney Proved the Harm
A medical malpractice specialist attorney provided assistance in proving the harm caused by the medical malpractice.
Argument of Negligence in Pre-Surgical Treatment Judgment
Taking into account the size, location, and condition of the client's tumor as a whole, observation through non-surgical treatment would have been possible in the early stage. Nevertheless, the hospital proceeded with invasive surgery without sufficient review of alternatives.
The medical malpractice specialist attorney argued that the hospital's decision constituted the selection of an unnecessary procedure in treatment or a careless treatment decision.
Argument of Negligence Due to Insufficient Safety Measures During Surgery
The surgical site was structurally close to major organs and blood vessels and therefore carried a high risk of damage. Nevertheless, the medical staff did not take sufficient safeguards and preventive measures.
As a result, lung damage and pleural perforation occurred during the surgery.
The medical malpractice specialist attorney emphasized that this was a clear breach of the duty of care.
Neglect of Post-Surgical Observation and Response
During the early post-surgical observation, the bleeding and infection symptoms were not detected at an early stage, and appropriate emergency measures were delayed, which worsened the patient's condition.
The medical malpractice specialist attorney argued that this constituted medical negligence due to neglect of post-surgical care.
Calculation and Claim of the Amount of Damages
As a result of the medical negligence, the client suffered serious harm, including prolonged treatment, decreased lung function, occupational loss, and mental suffering.
The medical malpractice specialist attorney prepared a claim for damages of approximately 100 million won, including treatment costs, lost income, and consolation money (solatium), and conveyed through a certified mail that the client preferred an amicable settlement over a dispute.
3. Result of the Medical Malpractice Specialist Attorney's Assistance: Mediation of a 100 Million Won Settlement for Medical Malpractice Harm
As a result of negotiations conducted by the medical malpractice specialist attorney with the hospital, a settlement was reached for the full amount of 100 million won claimed by the client, and the case was concluded promptly and amicably.
As with the client in the above case, if an unexpected adverse effect or worsening of one's condition occurs during treatment, this may not be a mere adverse effect but rather a medical accident resulting from a breach of the medical practitioner's duty of care or duty to explain.
▶Securing medical records
It is important to secure all medical records without omission, including the medical chart, the surgical record, and the test results.
▶Reviewing the possibility of negligence
It is necessary to review whether the medical procedure and the content of the explanation were appropriate and whether they conformed to medical standards.
▶Utilizing dispute resolution procedures
Damages may be claimed through mediation by the Korea Medical Dispute Mediation and Arbitration Agency or through civil litigation procedures.
Have You Suffered Medical Malpractice?
A medical malpractice case is a combined field that requires both medical knowledge and legal knowledge.
The reason it is difficult for a victim to respond on their own is that proving negligence, analyzing causation, and calculating the amount of harm require specialized expertise.
Daeryun LLC is composed of attorneys with experience working at the Korea Medical Dispute Mediation and Arbitration Agency, attorneys holding pharmacist and oriental medicine doctor qualifications, and attorneys with extensive experience advising medical institutions.
In addition, the firm's in-house Examination of Evidence and Digital Forensics Center collaborates to provide a one-stop service from evidence collection through mediation and litigation.
This content is based on actual case studies of Daeryun Law LLC with some adaptations, and the copyright belongs to our firm.
Unauthorized reproduction, duplication, or distribution and other copyright infringements may result in legal action under applicable laws.
