의료의 발달과 민사소송법적 대응

• 영문명: Development of Medical Treatment and Legal Responses with Civil Actions
• 발행기관: 원광대학교 법학연구소(의생명과학법센터)
• 저자명: 김일룡(Kim, Il-Ryong)
• 간행물 정보: 『의생명과학과 법』제3권, 35~70쪽, 전체 35쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.06.30

영문 초록

Against backdrop of high level of specialization with development of medical treatment, it became more difficult to identify doctors negligence and cause and effect of problems from patients position, compared to the past. Therefore, the need for lessening the burden of verification for patients, who are complainants, is much higher than before. In the case of disturbing the verification, the attitude towards it should be more determined than that of current precedents. In other words, ① as a patient, it is hard to prove up to the range and limit of discretion in medical practices, so it is sufficient if they can prove that reasonable medical practices within the range of medical practitioners discretion is different from doctors actual medical practices, and in such a case, it is adequate to assign the responsibility of verification on medical practitioners who have to prove that their own medical practices are within the range of their discretion. ② negligence in lawsuits for medical negligence refer to the existence of a duty of care and violation of the duty of care, and therefore, what duty of care was breached has to be already reported when the petition is submitted, but because of secret and closing nature of medical practice, inevitably, patients are not able to report it. Therefore, such a petition should be considered as a valid one, and it is appropriate to give patients opportunities to specify the contents of negligence with the evidence that is collected through examination procedure. ③ When the professionalism of medical practice is strengthened, medical practitioners negligence based on general public s commonsense cannot be discovered, but from the high level of specialized medical perspective, there will be more negligence of medical practitioners. Therefore, in fact, the most practical alternative is discarding the theory of estimation and assigning the responsibility of verification to medical practitioners. When we say assigning the responsibility of verification to medical practitioners, like precedents in Germany, it is sufficient if the victim proves the damages within the range of danger of assailants according to the theory of danger zone and it is appropriate to compose a theory that assailants can argue none-existence of subjective and objective requirement in damages. ④ Electronic records are highly debatable in terms of wide range of post-alterations. Therefore, when alterations of electronic records are discovered, it should not be judged by free conviction as medical negligence, but the responsibility of verifying negligence should be assigned to medical practitioners and the law should be stricter to behaviors of disturbing the verification. It is the same for alterations of written medical records.

목차

Ⅰ. 서 론

Ⅱ. 의료행위의 특질이 소송에 미치는 영향

Ⅲ. 증명책임의 전환 내지 완화

Ⅳ. 증명방해의 제재 강화

Ⅴ. 결 론

참고문헌

Abstract

키워드

의료행위 과실 인과관계 증명방해 증명책임 medical treatment negligence cause and effect disturb the verification responsibility of verification