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KMID : 0377619950600100820
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Korean Jungang Medical Journal
1995 Volume.60 No. 10 p.820 ~ p.823
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Automobile Accidents and Medical Malpracitice Suits
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Abstract
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In this 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 issues 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 automobile 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 all intents and purposes, will ultimately be the insurance company).
Because insurance companies are liable 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 most likely file a cross-action against the doctor in question, such cases, however, have been few and far between.
Thus far, there have been two major legal issues dealing with automobile accidents and medical malpractice resulting there from: (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 malpractices resulting there from 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 floodgates 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 policies.
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