CONTENTS
- 1. Medical Malpractice Litigation, the Detailed Circumstances?
- - Medical Malpractice Litigation, the Relevant Statutes?
- 2. Medical Malpractice Litigation, the Court's Determination?
- 3. Medical Malpractice Litigation, Daeryun's Strategy?
1. Medical Malpractice Litigation, the Detailed Circumstances?
The plaintiffs who brought the claim for damages arising from the medical accident were the surviving family members of A (age six), who died while undergoing surgery at a university hospital.
A was diagnosed at the hospital with suspected “intussusception and intestinal obstruction” and was transferred to the emergency room. After undergoing emergency surgery, A developed a high fever and a decline in consciousness in the ward, and despite cardiopulmonary resuscitation, A ultimately died.
After the death, an autopsy by the National Forensic Service produced the finding that “the death appears to have resulted from necrosis of the small intestine that progressed after the surgery due to an unidentified cause.”
On this basis, the surviving family members, citing, among other grounds, that the medical staff had administered an excessive amount of antipyretics without meeting the patient in person, and that they had not sufficiently explained the possibility of death from cardiac arrest after the surgery, the necessity of administering medication, and its side effects, filed a lawsuit asserting negligence on the part of the hospital medical staff.
The hospital, by contrast, countered that there had been no medical negligence, because it had checked the patient's condition at one-hour intervals and provided all necessary treatment according to that condition. The hospital also argued that it had sufficiently explained the purpose and effects of the surgery, as well as its course, methods, complications, and side effects.
Medical Malpractice Litigation, the Relevant Statutes?
The duty of explanation owed by a medical practitioner, which became the point of contention in this medical litigation, is provided for in the 🔗Medical Service Act. The Medical Service Act provides that a medical practitioner, including a dentist, must fulfill the “duty of explanation” when performing surgery or other treatment on a patient.
▣ Article 24-2 of the Medical Service Act (Explanation Concerning Medical Practice)
1. Where a doctor, dentist, or oriental medical doctor performs surgery, a transfusion, or general anesthesia that poses a risk of causing serious harm to a person's life or body, the doctor shall explain the matters under paragraph 2 to the patient (where the patient lacks decision-making capacity, this refers to the patient's legal representative; the same shall apply hereinafter in this Article) and obtain the patient's consent in writing. Provided, that this shall not apply where the surgery or the like would be delayed by the explanation and consent procedure, thereby endangering the patient's life or causing serious harm to the patient's mind or body.
The matters that must be explained to, and consented to by, the patient under paragraph 1 are as set out in the following subparagraphs.
1. The diagnostic name of the symptoms that have occurred or may occur in the patient 2. The necessity, methods, and content of the surgery and the like 3. The name of the doctor, dentist, or oriental medical doctor who provides the explanation to the patient, and of the principal doctor, dentist, or oriental medical doctor who participates in the surgery and the like 4. The aftereffects or side effects that are typically expected to occur as a result of the surgery and the like 5. The matters that the patient must observe before and after the surgery and the like |
2. Medical Malpractice Litigation, the Court's Determination?
The court that heard the claim for damages arising from the medical accident partially recognized the medical staff's liability for damages.
The court stated that “the medical staff took immediate measures, such as administering medication, in accordance with the patient's symptoms, and there appears to have been no negligence in the course of treatment,” and did not accept the plaintiffs' assertion of medical negligence.
However, the court pointed out that “the patient at the time was only six years old and was therefore unable to understand the content and necessity of the treatment, the anticipated risks, and the like, or to exercise the right to self-determination,” and that “accordingly, a sufficient explanation of the surgery should have been provided to the plaintiffs, who were the patient's holders of parental authority and guardians.”
On this basis, the court held that “because the deceased patient was a minor without decision-making capacity, there is liability for failing to fulfill the duty to explain the medical practice to the legal representative,” and recognized the amount of damages as 20 million won.
3. Medical Malpractice Litigation, Daeryun's Strategy?
In this medical malpractice litigation, we analyzed a District Court judgment holding that, where medical staff perform surgery on a child who is unable to exercise the right to self-determination, they have a duty to explain the risks of the surgery to the guardian.
If you intend to bring a lawsuit against medical staff for a violation of the Medical Service Act, we recommend obtaining the assistance of an attorney experienced in Medical Service Act matters.
The 🔗Medical Litigation Group of Daeryun Law Firm LLP, with a medical-specialized team possessing medical knowledge and clinical experience, works to identify suitable solutions across all areas of medical cases, including complex medical disputes, violations of the Medical Service Act and the Pharmaceutical Affairs Act, and relief for pharmaceutical-related harm.
If you would like to receive related assistance, you are welcome to request a 🔗legal consultation with Daeryun Law Firm at any time.
