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KMID : 0986720100180020007
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Korean Journal of Medicine and Law
2010 Volume.18 No. 2 p.7 ~ p.42
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The current status of civil litigation over medical malpractice and procedural challenges
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Shin Hyun-Ho
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Abstract
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Medical disputes have been augmented since the late 1980s Korea entered the OECD. As an advance in medical technique such as Gene therapy and Biological cloning is more likely to breach the human rights of the patient, judicial intervention needs to increase.
The Supreme Court have alleviated the burden of proof in medical malpractice like pollution litigation and product liability litigation. By applying theory of probability, theory of prima facie evidence(Ansheinsbeweis, indirektor Gegenbeweis) and theory of shifting the burden of proof, the Supreme Court is working to protect the right of patient. In the damage suit, the Supreme Court ruling is also showing to recognize consolation money as well as lost profits through invasion theory of expectancy right, theory to lose the opportunity of treatment, and theory about the limit of admission
With protecting the patient"s right, medical lawsuits and precedents should be guidelines to increase levels of medical care in this country. But they admitted too much responsibility and caused side effects such as atrophy and defense in the treatment area. The court has been affected to be more conservative and tends to require a strict burden of proof to the patient in 2010.
medical precedents would progress in keeping a balance between the right of life for patients and the right of treatment for doctors through the procedure of expertise, mediation system, the improvement of medical indemnity insurance system, adjustment.
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KEYWORD
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medical malpractice, medical precedent, medical team, the burden of proof, compromise, mediation system, adjustment
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