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KMID : 0986720160240020023
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Korean Journal of Medicine and Law
2016 Volume.24 No. 2 p.23 ~ p.47
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Proof of Negligence in Medical Malpractice Claims : Focused on The Common Knowledge Approach in Korea and U.S.A.
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Shin Eun-Joo
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Abstract
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There was a epoch-making case in the area of medical malpractice claims in February 1995. The supreme court in Korea held that a health care provider’s negligence can be assumed in case of patients to prove a health care provider’s wrongdoing based on the common knowledge. After that, many cases followed the same way as the case for medical negligence malpractice claim. Now the case of Feb. 1995 becomes a leading case in medical malpractice claims. The purpose is to ensure fairness between patients and health care providers.
The question of whether to apply the common knowledge for proving negligence has been decided on an case-by-case basis. Therefore, whether to apply the common knowledge depends on the eyes of the judges, not a law. The reality remains that the decision whether the common knowledge approach applies will often determine the outcome of a negligence claim against a health care provider. An argument can be made that there is room for some continuing application of the common knowledge for the fairness between patients and health care providers. But that leaves the question of where the balance should be struck because the concept is a lack of clarity. Thus, the task is compounded by the fact that the common knowledge approach has been a function of a case-by-case approach. Criteria should be developed that provide some intelligible demarcations and predictable standards while at the same time preserving some needed flexibility for deciding these necessarily fact-laden questions. I believe that the common knowledge approach should be retained. To do so, the cases for common knowledge approach will be accumulated in order to define some guidelines for its scope.
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KEYWORD
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medical claim, medical malpractice, proof of negligence, common knowledge, general common sense
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