|
KMID : 0986720180260010251
|
|
Korean Journal of Medicine and Law
2018 Volume.26 No. 1 p.251 ~ p.280
|
|
|
The Legal Doctrine of Limitation of Liability in Medical Malpractice Litigation
|
|
Sim Da-Eun
Park Ji-Yong
|
|
|
Abstract
|
|
|
|
This article aims to review the legal principle of limitation of liability in medical malpractice litigation with a focus on Supreme Court Decision 2015Da55397 Decided June 23, 2016. The legal principle of limitation of liability suggests that even when tort damage liability is found to have arisen from a medical doctor’s violation of duty of due care in his/her medical practice, if the injury by an error in medical practice concurrently arose from, or was aggravated by, factors attributable to the victim, then in setting the level of compensation the court may take into account such factors that contributed to causing or aggravating the injury. Discussions on the limitation of liability were not very active compared to the discussions of the duty of care or causal relationship, but it is very important to the parties concerned because the amount of damages may vary greatly depending on whether the liability is limited and how much it is limited. As fact-finding trial is given the carte blanche with regard to the matters related to the limitation of liability, there are benefits that the assessment of damage awards can be flexibly operated in individual cases. However, it can be difficult for the parties to predict the damage awards and the trust of the parties to the trial may be undermined if limitation of liability is arbitrarily carried out. In such a circumstance, it is necessary to raise the predictability of the parties by clarifying what factors limit the liability and how they can be typified. This article examines the Supreme Court Decision, the first court ruling, the second court ruling and the case reversed and remanded, and analyzes the legal principle of limitation of liability in the precedents. The decision is significant in that it has introduced a new principle on the limitation of liability in medical malpractice litigation. By analyzing the lower court decisions, this article examines the ripple effect on how the decision affected the limitation of liability of the lower court decisions. This article categorizes the factors of limitation of liability shown in the cases henceforth as the factors attributable to doctor, patient and the third, and critically examines the validity of each factor of the limitation of liability.
|
|
|
KEYWORD
|
|
|
medical malpractice litigation, damage awards, limitation of liability, factor of limitation of liability, neglect of duty of ordinary care
|
|
|
FullTexts / Linksout information
|
|
|
|
|
|
Listed journal information
|
|
|
|