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KMID : 1234820080090010057
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Korean Society of Law and Medicine
2008 Volume.9 No. 1 p.57 ~ p.127
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The Meaning and Criterion of Medical Malpractice(negligence) from Moderating the Burden of Proof in a Medical Malpractice Suit
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Kim Yong-Bin
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Abstract
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In medical malpractice lawsuits, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from a foreseeable risks of harm. Thus, the essence of negligence is a breach of obligations to be attentive, and the breach of obligations to be is negligence. However, whether negligence is or not depends on time, place, litigation forms and the judge since the meaning of negligence is wavering on the basis of abstract and normative judgment. In this thesis, what is medical negligence, a breach of obligations of attention for a doctor in medical malpractice lawsuits, would be it further enacted that doctors have the responsibility to protect the patients as a subordinate duty due to a principle of faith and sincerity besides the main duty for medical contract-performance since the suit is a litigation form to be based on responsibilities of experts, especially doctors, though having factors that are non-contractual as a trait for medical treatment. Further on the concept, when the plaintiff asserts and proves a specific fact from the recent moderation of the burden of proof about medical malpractices, whether the court should find a true bill in medical malpractice actually or not has been discussed.
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KEYWORD
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medical malpractice, proof liability(burden of proof), causation, determination of negligence, informed consent
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