In this age of increasing automobile accidents, a corresponding increase in malpractice suits as a result of such accidents appears to be an inevitable phenomenon. Although apportioning blame and liability may be an inconsequential exercise to
the
injured plaintiff whose foremost concern is to recover, it is an important issue for the insurance companies which are saddled with the onus of paying off the damages resulting from such lawsuits. Although such legal issue have been addressed in
neighboring Japan for the past twenty to thirty years, Korea has only recently begun exploring the potentially explosive problem of medical malpractice suits.
When injury occurs as a result of an automobile accidents, and the injury is then compounded and aggravated by medical malpractice, the plaintiff may claim joint and several liability against both the party directly responsible for the automoblie
accident itself, and the doctor who later performed a negligent medical procedure or misdiagnosed the injury. Although it has been relatively easy to collect damages for the automobile accident itself, it has been difficult to collect damages
from
the
doctor since the plaintiff traditionally bore the burden of proving negligence and causation. This is a major practical obstacle to asserting claims against doctors, and plaintiffs as such normally confine their law suits to the party directly
responsible for the accident(who, for al intents and purposes, will ultimately be the insurance company).
Because insurance companies are lialbe for the entire damage award regardless of how negligence is apportioned, it is rarely in their interest to zealously pursue a medical malpractice claim. In the event that such a claim is made, the insurance
company
will been few and far between.
Thus far, there have been two major legal issues dealing with automobile accidents and medical malpractice resulting therefrom : (1) the issue of causation when the injury has been aggravated through improper and negligent treatment of the
afflicted
patient, and (2) once joint liability is established, how to apportion the blame between multi-defendants for purposes of damages.
Because of legal precedents and scholarly opinions which recognize automobile accidents and medical malpractice resulting therefrom as one and the same(i. e. an indivisible injury), it is the current practice to presume joint liability in such
cases. in
order to reinforce such legal custom, the Korean Supreme Court has rendered a decision whereby a party injured by an automobile accident who later develops an additional medical ailment and/or the injury worsens, then the court will presume,
barring
exceptional circumstances, that there is causation between such new injury and the doctor's negligent treatment. In short, there will be a rebuttable presumption in favor of recognizing causation in order to give medical malpractice suits more
teeth
before a court of law. Once joint liability is established, it will be up to the defendants to apportion liability amongst themselves.
Insurance companies are expected to exploit this ruling which alleviates their burden of satisfying a vital element of a medical malpractice suit; accordingly, such ruling may act as a catalyst to opening the follodgates to such malpractice
suits.
Because this is still a relatively underdeveloped area of law in Korea, it behooves us to thoroughly examine the impact it will have in the areas of law, medicine, and insurance poliiies.
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