CONTENTS
- 1. Overview of the Medical Negligence Damages Litigation
- - Criteria for Determining Medical Negligence
- - The Duty to Explain in Medical Negligence Litigation
- - Q&A on Medical Negligence Frequently Asked by Medical Professionals
- 2. Establishing a Strategy for Responding to the Medical Negligence Damages Litigation
- - Submission of Medical Records and Medical Materials
- - Argument Based on Neuromonitoring Examination Results
- - Submission of the Specialist's Expert Appraisal
- 3. Result of a Medical Negligence Claim for Damages: Appellate Court Also Dismisses the Claim
1. Overview of the Medical Negligence Damages Litigation
The overview of the medical negligence litigation is as follows.
The patient underwent spinal corrective surgery at the client's hospital to correct a spinal deformity.
When symptoms of lower-limb paralysis appeared immediately after the surgery, the patient claimed that this was spinal cord damage caused by medical negligence and filed a damages claim of approximately KRW 500 million.
The court of first instance dismissed the patient's claim, but the patient, dissatisfied with the first-instance judgment, filed an appeal.
The hospital requested Daeryun LLC, which had handled the litigation together from the first instance, to respond to the appeal.
The issues in this case were whether there had actually been nerve damage during the course of the surgery, whether the medical staff had fulfilled the standard duty of care, and whether the medical staff should bear liability even for unforeseeable complications.
At Daeryun LLC, medical specialist attorneys who hold physician qualifications, pharmacist and oriental medicine doctor qualifications, and experience as examiners at the Korea Medical Dispute Mediation and Arbitration Agency took the lead in responding to the case.
Criteria for Determining Medical Negligence
In determining whether there was medical negligence, the court uses as its criterion whether an average physician engaged in the same line of work could have foreseen and avoided the result.
This is an approach that comprehensively considers the level of medical science at the time the incident occurred, the hospital's staffing and facility conditions, and the special characteristics of the medical act.
Therefore, medical negligence is not found merely because, in hindsight, a better method of treatment existed. In addition, it is very important to distinguish between complications that may inevitably arise during the course of surgery and medical negligence.
A complication that inevitably arose even though the medical staff complied with standard procedures is difficult to regard as medical negligence.
The Duty to Explain in Medical Negligence Litigation
A medical practitioner bears a legal duty to sufficiently explain to the patient the diagnosis, treatment method, surgical process, and the prognosis and possibility of complications.
The duty to explain is broadly divided into three types.
First, there is notification explanation, which provides information so that the patient can be aware of the disease and the course of treatment.
Second, there is advisory explanation, which informs the patient of alternatives and risks so that the patient can choose whether to undergo treatment.
Third, there is guidance explanation, which informs the patient of precautions after discharge and the need for follow-up observation.
The purpose of such explanation is to enable the patient to exercise the right of self-determination.
If the duty to explain is neglected, liability for damages arising from the infringement of the right of self-determination may be recognized, separately from the medical act.
Q&A on Medical Negligence Frequently Asked by Medical Professionals
Q. If a patient develops neurological symptoms after surgery, is it immediately regarded as medical negligence?
A. The occurrence of symptoms after surgery does not necessarily mean that medical negligence is found.
If the medical staff performed standard medical surgery during the course of the operation, the symptoms may be an unavoidable complication.
Accordingly, the court comprehensively considers the neuromonitoring results during surgery, the anesthesia records, the imaging materials, and the appraisal results to determine whether there was direct damage or another cause, and thereby determines whether there was medical negligence.
Q. How detailed must a medical practitioner's explanation to the patient be?
A. A medical practitioner must explain the purpose and method of the surgery, the types and frequency of major complications, alternative treatments, the consequences of not undergoing the surgery, and the precautions after discharge, so that the patient can exercise the right of self-determination.
The explanation must be given at a level that the patient or guardian can understand, and if the surgical plan changes due to a change in circumstances, a renewed explanation is required.
Such a process must be documented through consent forms, consultation records, and explanatory materials in order to prove the performance of the duty to explain.
Q. What problems arise if the medical records are insufficient?
A. In a medical dispute, the medical records, surgical records, anesthesia records, and examination results constitute key evidence.
If records are missing or unclear, the court may ease the degree of proof in favor of the patient.
In other words, if a medical institution fails to properly preserve materials, the risk of receiving an unfavorable presumption increases.
Therefore, leaving accurate and complete records is the starting point for the defense of a medical negligence lawsuit.
Q. How is the amount of damages determined in a medical negligence lawsuit?
A. The amount of damages is calculated by summing treatment costs, future treatment costs, lost income, and consolation money.
However, the court sometimes reduces the amount in consideration of the patient's constitution, pre-existing conditions, and the inevitability of complications. This stems from the determination that it is not fair for the medical practitioner to bear full responsibility for all results.
2. Establishing a Strategy for Responding to the Medical Negligence Damages Litigation
We set out to establish a strategy for responding to the medical negligence damages litigation.
Submission of Medical Records and Medical Materials
The medical specialist attorney proved, on the basis of the entirety of the medical records, including the hospital's surgical record sheets, anesthesia records, and imaging materials, that the medical act had been carried out in accordance with standard procedures.
Emphasizing that these materials were key evidence demonstrating that the medical staff had fulfilled their duty of care at the time, the attorney argued that the case did not constitute medical negligence.
Argument Based on Neuromonitoring Examination Results
The medical specialist attorney emphasized that, in the neuromonitoring examination continuously conducted during the patient's surgery, no abnormal signs suggestive of nerve damage were detected.
Based on the point that there had been no direct nerve damage during the course of the surgery, the attorney argued that the case did not constitute medical negligence.
Submission of the Specialist's Expert Appraisal
The specialist's expert appraisal likewise found no direct nerve damage immediately after the surgery.
In addition, although there was a temporary decrease in signal intensity during the surgery, it was confirmed that this was merely a simple stimulation and was at a level that could not lead to permanent damage.
The medical specialist attorney submitted the specialist's expert appraisal as evidence and emphasized that the case was not medical negligence.
3. Result of a Medical Negligence Claim for Damages: Appellate Court Also Dismisses the Claim
As a result of defending against a medical negligence (malpractice) claim for damages, the appellate court likewise found it difficult to recognize negligence on the part of the medical staff and dismissed all of the plaintiff's claims.
This judgment reaffirms that even when an unexpected outcome arises after surgery, medical negligence is not presumed on that basis alone, and that the key issue is whether the medical staff fulfilled the standard duty of care at the time.
Medical negligence disputes place a significant burden on both patients and medical institutions.
Accordingly, the hospital must maintain thorough records and secure objective evidence.
Medical records, anesthesia records, surgical records, imaging materials, and neuromonitoring device results all serve as key materials for proving that the medical staff observed their duty of care.
In addition, an expert physician's opinion and medical literature can be used to prove that the surgery was performed in accordance with standard procedures.
Medical disputes are sometimes concluded early through conciliation or settlement, but there is a risk that they may lead to renewed disputes because the criteria for calculating settlement amounts are unclear.
If the matter ultimately proceeds to litigation, the assistance of an attorney who can sufficiently explain the particularities of medical practice and the scientific basis is essential.
At Daeryun, medical specialist attorneys who hold physician licenses, pharmacist or oriental medicine practitioner licenses, and experience as examiners at the medical arbitration agency take the lead in supporting settlement and conciliation, and at the litigation stage, they protect clients' rights through a thorough evidentiary strategy.
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.
