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KMID : 0986720100180020072
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Korean Journal of Medicine and Law
2010 Volume.18 No. 2 p.72 ~ p.97
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The Exploration into Favorable Ways to Remedy Victims Caused by Inoculation : Based on Analysis about Precedent Cases of Inoculation Damage in Japan
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Moon Seong-Jea
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Abstract
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Inoculation aims to protect ourselves from potential risk of communicable diseases and is also a means for us to perform our own duty of social defense to prevent pathogenic bacteria that attacked someone from any further propagation into community. Here, the matter is that preventive vaccines used to meet these goals, like other medicines, may involve potential side effects, complications and sequelae associated with any adverse reaction to inoculation, although every safety precautions are fully observed. In this regard, it is necessary to prepare an institutional instrument to remedy victims for any damage from adverse reactions to inoculation. With a view to implement such an instrument, Korea has enforced a system of governmental compensations for victims damaged by inoculation, but the system is formal remedy system led by governmental authorities, so it is inevitably demanded to develop more concrete and realistic remedy system. In particular, the rate of compensation for victims damaged by inoculation still remains lower in Korea than advanced countries, because any damage from inoculation is subject one- sidedly to governmental compensation to the extent that it is recognized as justifiable damage by the Minister of Health and Welfare, regardless of defective inoculation medicine or inoculation practitioner"s fault. As a matter of fact, governmental assumption of responsibility for any damage from adverse reactions to inoculation is attributed primarily to a judicial consensus that it is not reasonable to shift entirely on victims any damage from administrative enforcement for the benefit of better national health, and it is rather appropriate that such damages should be remedied by loss sharing among all the people. However, when considering that governmental remedy doesn"t mean any realistic compensation for victims, it is important that victims damaged by adverse reactions to inoculation should have a capacity to claim any damage and loss from defective vaccine to vaccine manufacturer. Moreover, it is also necessary to carefully consider possible ways for victims to claim damages to actual offender, if the damages are caused by intentional or unintended fault of other third parties.
In Japan, most of early damage claim cases on any adverse reaction to inoculation were also associated with vaccine manufacturers" product liability and governmental responsibility for risk controls in regard to safety of vaccine, but governmental remedy for victims was consistently subject to inactive measures simply because such damages were construed not to result from any governmental illegal act. However, actual wide gap between damage and remedy has led to increasing national consensus about needs to develop permanent measures for those victims in terms of increasing needs to protect individuals from any mortal risk or other physical damages due to government-enforced inoculation, ultimately ending up with increasing demands of individual victims for permanent measures through lawsuits as well as their requests for review of conventional inoculation system to government. Such a social change of Japan is very significant in comparison with Korean realities. Notably, Tokyo cases of Japan concerning claims for damages from inoculation have significant implications in one sense that all of their judgments accept claims made by plaintiffs (victim) and are also epoch-making judgments that allow judicial remedy for damages from adverse reactions to inoculation, and in the other sense that their judgments made a meaningful opportunity to implement remedy for victims resulting from adverse reactions to inoculation and realize conventional inoculation system. Conclusively, it is expected that this study will be a useful reference to develop a future Korean system of remedy for victims damaged by inoculation, because it prepares an institutional foundation to remedy victims for their damages as the result of long-term lawsuit, and can forecast possible orientations of current Korean remedy system for victims damaged by inoculation.
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KEYWORD
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inducing factor, National Childhood vaccine Injury Act, national vaccine injurycompensation program, vaccine reaction, programmatic error, coincidental event, injection reaction
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