Medical malpractice

Medical malpractice (의료사고/醫療事故) refers to the accident where a medical doctor, including an oriental medical doctor, is responsible for for the suffering or death of the patient-victim.

When a medical accident takes place, the Act on the Remedy and Dispute Mediation of Medical Accident (의료사고 피해구제 및 의료분쟁 조정 등에 관한 법률) may be invoked for the prompt and equitable remedy of such medical accident. This Act is applied to medical doctors, dentists, oriental medical doctors, nurses, assistant nurses, medical engineers and even pharmacists. The responsibility for such medical malpractice belongs to professional liability.

Key words
medical doctor, oriental medical doctor, duty of care, Medical Services Act, causation

Supreme Court cases
Supreme Court Decisions 2002Da45185 (decided October 28, 2004), 2007Da41904 (decided August 19, 2010), 2011Da37773 (decided August 25, 2011), 2005Da41863 (decided May 31, 2007), among others, deal with the factors of medical accidents.

Supreme Court Decision 2010Do10104 decided on April 14, 2011 [Injury due to Occupational Negligence, Violation of the Medical Services Act]
 * By Justices Lee Sang-hoon (Presiding Justice), Kim Ji-hyung, Jeon Soo-ahn (Justice in charge), Yang Chang-soo.

Criteria for MD's negligence in medical accidents
The following elements are necessary for a medical doctor to be responsible for an medical accident: In order to acknowledge a medical doctor's negligence in the medical accident, a medical doctor's negligence of failure to anticipate and avoid the occurrence of a consequence where it is possible to anticipate and avoid shall be reviewed.
 * Negligence of failure to anticipate and avoid unwanted consequencs is existent.
 * Ordinary person's duty of care in the same work is standard.
 * The duty to explain to the patient is fulfilled.
 * Causal relation exists between the medical doctor's practice and pacient's suffering or death.
 * Other factors, including the level of ordinary medical science at that time, medical environment and conditions, medical treatment's special nature, etc., should be considered.

In determining the existence of negligence, the ordinary person's duty of care in the same work and duties shall be the standard. And also, the level of ordinary medical science at the time of medical accident, medical environment and conditions, medical treatment's special nature, etc. should be considered.

The above legal principle applies equally to the case of oriental medical doctor.

Actual assessment
In view of all circumstances, the oriental medical doctor did not have a duty to administer the allergy skin test again as the victim had no abnormal reaction in the past allergy skin test and in the bee liquid needle treatment 12 days before the defendant's treatment.

Thus, even with the duty, it is hard to acknowledge a causal relation between not to administer an allergy skin test and the patient's injury, in case where an oriental medical doctor got the answer that the patient did not have any abnormal reaction with a bee liquid needle treatment, and without an allergy skin test, he administered the bee liquid needle treatment on the affected neck part, and the patient showed anaphylactic shock reaction and suffered injury after the treatment

Causal relation
If a medical doctor administered a medical treatment in violation of a duty to explain and the patient suffered injury, a causal relation must exist between the patient's injury and the medical doctor's violation of a duty to explain or fault during the process of acquiring an approval for a medical doctor to be held liable criminally due to occupational negligence and the same principle applies to an oriental medical doctor's case.

If the medical doctor had fulfilled a duty to explain to the patient prior to bee liquid needle treatment, it can not be seen that the patient would have refused a bee liquid needle treatment. Where an oriental medical doctor got the answer that the patient did not have any abnormal reaction with a bee liquid needle treatment, and without a sufficient prior explanation as to side-effects, he administered the bee liquid needle treatment on the affected neck part, and the patient showed shock reaction and suffered injury after the treatment.