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KMID : 1234820080090010285
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Korean Society of Law and Medicine
2008 Volume.9 No. 1 p.285 ~ p.317
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Requirements to Accept the Medical-service Person’s Professional Negligence in the Medical Malpractice Case Occurred being on Duty - With its focus on the Precedent case no. 2005Do314, Sentenced by June 10, 2005, by The Supreme Court -
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Kim Young-Tae
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Abstract
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To accept the doctor’s professional negligence in the medical malpractice, the mistakes, by which the doctor did not foresee the production of the results in spite of the possibility of foresight and did not avoid the production of the results in spite of the possibility of avoidance, must be considered, and to decide the presence of the doctor’s professional negligence, the standard must be the attention standard of general-common doctor engaged in the same business and the same function, and the medical enviornments, the conditions, the extraordinary nature of medical behavior, and etc should be considered by the general level of medical science at the time of accident. This principlel must be applied to the medical malpractice case occurred being on duty without exception. But, because of the extraordinary nature of duty work, it is difficult for any doctor to do one’s best technical practice by making all diagnosis, medical treatment with all the equipment on the same plane as the ordinary times. That cannot be also expected for any doctor to do one’s best technical practice in the terms of a social idea. From this point of view looking into The Precedent case related to Medical-service person being on duty sentenced by The Supreme Court, unlike the general medical malpractice case, the presence of the professional negligence in the medical malpractice occurred being on duty seems to be decided with more consideration on the general level of medical science, the medical enviornments and the conditions, particularities of medical practice at the time of accident. Especially, the extraordinary nature of medical behavior of the medical service person being on duty in the emergency room seems to be admitted compared to that of the medical service person being on duty in ward.
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KEYWORD
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Medical-service person, professional negligence, extraordinary nature of medical behavior, hyperventialation syndrome, possibility of foresight and avoidance
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