의료과오와 주의의무

• 영문명: Malpractice and Standard of Care
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 전광백(Kwang-Baek Jun)
• 간행물 정보: 『비교사법』비교사법 제12권 3호, 187~224쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.09.01

영문 초록

Neglgence, the most common theory of liablity in medical malpractice litigation, is defined as "conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." The negligence cause of action geneally requires that four elements be established: (1) there exists an obligation of due care; (2) the duty is violated on the basis of the applicable standard of care; (3) whatever injuries or damages are sustained are proximately caused by the breach of duty; and (4) the plaintiff suffers compensable damages. The burden is on the plaintiff to establish each and every element of the negligence action. The standard of conduct that is required to meet the obligation of "due care" is based upon what the "reasonable practioner" would do in like circumstances. The standard is not one of exellence or superior practice; it only requires that the physican exercise that degree of skill and care that would be expected of the average qualified practioner practicing under like circumstances. Such circumstances might include the location where the practioner conducts his practice and even the school of medcine to which he adheres. Thus, in a particular case, if two or more alternative procedures might have been used and the defendant selected one, the issue is whether a competent physicians would have done so, even if another would not. The standard is also not one of good faith; the fact that a physician meant well or practiced to the best of his ability is not relevant. Conduct is always measured by objective criteria in terms of how the reasonable practioner would perform under like circumstances. Respectable minority theory is that certain procedures which might not be adopted by a majority of practicing phyisicians might still be acceptable to a "respectable minority" of such practitioners. Thus, if a choice can be made among various alternative approaches to treating a particular condition and a respectable minority of physicians would have selected one such procedure, a physician will not be held liable for malpractice, assuming, of course, reasonable skill and care were exercised in providing such care. The standard of care that is applicable to a particular physician has historically depended, at least in part, on where he practices and what "school" of treament he follows. The geographical location where a physician practices has historically had a bearing on the standard of care to which he is held. The locality rule served primarily as a rule that would limit who could testify as an expert in a medical malpractice case. The question of where in some cases the obligation of a physician is to adhere not only to the standard of the "average qualified practitioner" but to some higher standard is a difficult one. If, in a certain situation, a physician believes the acceptable medical practice to be unreasonably dangerous and he has sufficient expertise to know of a better practice, does he have an obligation to use his superior knowledge and skill? If so, he can not be held accountable if he fails to do so.

목차

Ⅰ. 서

Ⅱ. 주의의무의 의미

Ⅲ. 의사의 주의의무의 판단 시 고려 요소

Ⅳ. 결론

[참고문헌]

【ABSTRACT】