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KMID : 1234820120130010295
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Korean Society of Law and Medicine
2012 Volume.13 No. 1 p.295 ~ p.329
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A Constitutional Review on Compensation for Medical Malpractice during Delivery
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Cheon Kwang-Seok
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Abstract
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A medical malpractice case requires special legal protection, considering its characteristics, such as seriousness and long term effects of its damages, medical information asymmetry between practitioners and patients, and difficulties in realization of liability. Taking the points above into consideration, Medical Malpractice Arbitration Act of 2012(MAA) has legislative intent to protect the rights of the injured from medical malpractice, while protecting the stability of medical practice by providing arbitration as an alternative dispute resolution. However, constitutional review is required for one new scheme of compensation for medical injuries during delivery, which is implemented in MAA of 2012, especially with regard to freedom to exercise occupation, property, equality under the Constitution. Two important aspects are 1. according to the law, absolute liability applies to compensation for damages during delivery without negligence of practitioners; and 2. the practitioner bears some portion of the cost, 30% in the law above. This article aims to analyze this new institution in various aspects of the Constitution, and, as a result, it does not comply with constitutional criteria.
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KEYWORD
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Medical malpractice compensation, Medical Dispute Arbitration Act, Medical Malpractice Arbitration Act(MAA), Negligence, Absolute liability, Special charge
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