According to the review and analysis of medical cases that are assigned to the Supreme Court and all local High Court in 2011 and that are presented in the media, it was found that the following categories were taken seriously, medical and pharmaceutical product liability, the third principle of tru...
According to the review and analysis of medical cases that are assigned to the Supreme Court and all local High Court in 2011 and that are presented in the media, it was found that the following categories were taken seriously, medical and pharmaceutical product liability, the third principle of trust between medical institutions, negligence and causation estimation, responsibility limit, the meaning of medical records and related judgment of disturbed substantiation, Oriental doctors' duties to explain the procedures, IMS events, whether one can claim for each medical care operated by non-physician health care institutions to the nonmedical domain in the National Health Insurance Corporation, and the basis of norms for each claim. In the cases related to medical pharmaceutical product liability, Supreme Court alleviated burden of proof for accidents with medical and pharmaceutical products prior to the practice of Product Liability Law and onset the point of negative prescription as the time of damage strikes to condition feasibility of the specific situation. In the cases related to the 3rd principle of trust between medical institutions, the Supreme Court refused to sentence the doctor who has trusted the judgment of the same third-party doctors the violations of the care duty. With respect to proof of a causal relationship and damages in a medical negligence case, the Supreme Court decided that it is unjust to deny negligence by the materials of causal relationship rejecting the original verdict and clarified that the causal relationship shall not deny the reasons to limit doctors' responsibilities. In order not put burden on patients with disadvantages in which medical records and the description of the practice or the most fundamental and important evidence to prove negligence and causation are being neglected, the Supreme Court admitted in the hospital's responsibility for the case of the neonate death of suffocation without properly listed fetal heart rate and uterine contraction monitor. On the other hand, the Seoul Western District Court has admitted alimony for altering and forging medical records. With respect to doctors' obligations to description, the Supreme Court decided that it is necessary to explain the foreseen risks by the combination of oriental and western medicines emphasizing the right of patient's self-determination. However, questions have arisen whether it is realistically feasible or not. In a case of an unlicensed doctor performing intramuscular stimulation treatment (IMS), the Supreme Court put off its decision if it was an unlicensed medical practice as to put limitation of eastern and western medical practices, but it declared that IMS practice was an acupuncture treatment therefore the plaintiff's conduct being an illegal act. In the future, clear judgment on this matter should be made. With respect to the claim of bills from non-physical health care institutions, the Supreme Court decided to void it for the implementation of the arrangement is contrary to the commitments made in the medical law and therefore, it is invalid to claim. In addition, contrast to the private healthcare professionals, who are subject to redemption according to the National Healthcare Insurance Law, the Seoul High Court explicitly confirmed that the non-professionals who receive the tort operating profit must return the unjust enrichment and have the liability for damages. As mentioned above, a relatively wide range of topics were discussed in medical field of 2011. In Korea's health care environment undergoing complex changes day by day, it is expected to see more diverse and in-depth discussions striding out to the development in the field of health care.
According to the review and analysis of medical cases that are assigned to the Supreme Court and all local High Court in 2011 and that are presented in the media, it was found that the following categories were taken seriously, medical and pharmaceutical product liability, the third principle of trust between medical institutions, negligence and causation estimation, responsibility limit, the meaning of medical records and related judgment of disturbed substantiation, Oriental doctors' duties to explain the procedures, IMS events, whether one can claim for each medical care operated by non-physician health care institutions to the nonmedical domain in the National Health Insurance Corporation, and the basis of norms for each claim. In the cases related to medical pharmaceutical product liability, Supreme Court alleviated burden of proof for accidents with medical and pharmaceutical products prior to the practice of Product Liability Law and onset the point of negative prescription as the time of damage strikes to condition feasibility of the specific situation. In the cases related to the 3rd principle of trust between medical institutions, the Supreme Court refused to sentence the doctor who has trusted the judgment of the same third-party doctors the violations of the care duty. With respect to proof of a causal relationship and damages in a medical negligence case, the Supreme Court decided that it is unjust to deny negligence by the materials of causal relationship rejecting the original verdict and clarified that the causal relationship shall not deny the reasons to limit doctors' responsibilities. In order not put burden on patients with disadvantages in which medical records and the description of the practice or the most fundamental and important evidence to prove negligence and causation are being neglected, the Supreme Court admitted in the hospital's responsibility for the case of the neonate death of suffocation without properly listed fetal heart rate and uterine contraction monitor. On the other hand, the Seoul Western District Court has admitted alimony for altering and forging medical records. With respect to doctors' obligations to description, the Supreme Court decided that it is necessary to explain the foreseen risks by the combination of oriental and western medicines emphasizing the right of patient's self-determination. However, questions have arisen whether it is realistically feasible or not. In a case of an unlicensed doctor performing intramuscular stimulation treatment (IMS), the Supreme Court put off its decision if it was an unlicensed medical practice as to put limitation of eastern and western medical practices, but it declared that IMS practice was an acupuncture treatment therefore the plaintiff's conduct being an illegal act. In the future, clear judgment on this matter should be made. With respect to the claim of bills from non-physical health care institutions, the Supreme Court decided to void it for the implementation of the arrangement is contrary to the commitments made in the medical law and therefore, it is invalid to claim. In addition, contrast to the private healthcare professionals, who are subject to redemption according to the National Healthcare Insurance Law, the Seoul High Court explicitly confirmed that the non-professionals who receive the tort operating profit must return the unjust enrichment and have the liability for damages. As mentioned above, a relatively wide range of topics were discussed in medical field of 2011. In Korea's health care environment undergoing complex changes day by day, it is expected to see more diverse and in-depth discussions striding out to the development in the field of health care.
가해행위와 이로 인한 현실적인 손해의 발생 사이에 시간적 간격이 있는 불법행위에 기한 손해배상채권의 경우, 소멸시효의 기산점이 되는 “불법행위를 한 날”의 의미는 단지 관념적이고 부동적인 상태에서 잠재적으로만 존재하고 있는 손해가 그 후 현실화되었다고 볼 수 있는 때, 다시 말하자면 손해의 결과 발생이 현실적인 것으로 되었다고 할 수 있는 때로 보아야 한다(대법원 1998. 5.
과실이 추정되는 경우 그 추정을 번복하기 위해서는 무엇을 제시해야 하는가?
본 판결의 경우 간접사실에 의한 과실추인에 있어서 의료상 과실 외에는 다른 원인이 있다고 보기 어려운 여러 가지 간접사실들이 충분히 주장․ 입증되어 과실이 추인되었다는 점에서 간접사실에 의한 과실추인에 충실한 판결이 라고 생각된다. 나아가 피고 측에서 수술 도중 SSEP 검사를 실시하여 신경손상 여부를 모니터링 하였고 그 검사에서 이상 소견이 없었으므로 신경손상이 없었다는 주장에 대해서도, 피고 측이 SSEP검사 데이터가 손상되는 사건이 발생하였다며 자료를 제출하지 못하였고, SSEP 검사 자체가 위양성(僞陽性), 위음성(僞陰性)이 많은 불완전한 검사라는 점에서 설사 SSEP검사 결과가 정상이었다고 하더라도 과실추정을 번복하지 못한다고 판시하여 과실이 추정되는 경우 그 추정을 번복하기 위해서는 더 확실한 개연성이 있는 반증을 제시해야 한다는 점을 명확히 한 점에 의의가 있다.
그동안 공단은 개설자인 고용된 의사에 대해서만 환수결정처분을 하고 비의료인에 대하여는 별다른 조치를 취하지 않아 발생한 문제점은?
공단으로부터 환수를 당한 의사는 형사처벌, 행정처분 외에도 자기가 이득을 얻은 바 없는 부분에 대하여도 반환의무를 부담하였다. 이에 반해 비의료인은 개설된 의료기관에서 이익을 취하고서도 공단의 환수로부터는 자유로워 형사처벌 외에는 아무런 제재를 받지 않게 되는 문제가 있었다. 이러한 사실은 속칭 사무장 병원이 더 활개를 치게 된 요인으로 작용하여 의사들이 반발하는 또 하나의 원인이 되었다.
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