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KMID : 1234820110120020065
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Korean Society of Law and Medicine
2011 Volume.12 No. 2 p.65 ~ p.117
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Pharmaceutical Product Liability and the Burden of Proof
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Moon Hyeon-Ho
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Abstract
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This article analyzes the case (2008Da16776) which has the issue how patients have to prove causal relationship when patients claim against pharmaceutical companies alleging that patients were infected with virus due to contaminated blood products. The Supreme court held that: (1) if patients prove that they didn’t have symptoms suggesting virus infection before administration of blood products, the virus infection had been confirmed after administration of blood products, and there were significant potential of contamination of the blood products with the virus, the defect in blood products or the negligence of pharmaceutical company in making blood products shall be presumed to cause the infection of the victim. (2) The pharmaceutical companies could reverse the presumption by proving the blood products were not contaminated, but the fact that the victims were treated with the blood products manufactured by other companies or had received blood transfusions is not enough to reverse the presumption. The case is the first decision whether the burden of proof about causal relationship could be reduced in pharmaceutical product liability lawsuit. Hereafter pharmaceutical product liability cases, it would be necessary to reduce the burden of proof about causal relationship in order to make substantive equality between patients and pharmaceutical companies.
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KEYWORD
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Drug, Pharmaceutical product, Blood product, Pharmaceutical company, Product liability (PL), Causal relationship, Defect, Negligence, Burden of proof, Presumption, Damages, Infection, HIV, AIDS
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