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KMID : 1234820190200010133
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Korean Society of Law and Medicine
2019 Volume.20 No. 1 p.133 ~ p.162
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Legal issues on HAI
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Lee Soo-Kyoung
Yoon Seok-Chan
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Abstract
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Due to the nature of medical malpractice lawsuits, it is difficult for medical consumers, who are weak in getting information when it comes to health care problem, to secure all information inside the hospital. Even if you are confident about the hospital infection, it is true that people have difficult to obtain medical testimony by expert. It is seen as no easy task to testify to the malpractice of colleagues who work in the same field not only in our country but also abroad, when a doctor gives negative testimony to another doctor in a medical malpractice lawsuit. Although few health care providers will be motivated to take medical care from the outset, testimony or statements from a medical practitioner can have a significant impact on the outcome of a lawsuit, as it is impossible for the patient to control or be aware of the whole process of medical conduct, especially in the event of a hospital infection and the victim. If the hospital can prove the causality of damages caused by negligence of the employees or supervision of the hospital itself in a medical suit caused by the infection, the level of protection of the victim could be raised further. We sought to find a solution to these problems by looking at the provisions of other laws related to hospital infection. In particular, as the comparative legal review regarding hospital infection, Germany's legislative precedent sets a medical contract as a typical civil law contract, so it is thought that looking at German civil law regulations also has implications for Korean law. We also tried to improve the French Special Act 'rights of patients' and we can look at the consequent changes in court cases. Finally, the content of the U.S. case's and the theory of 'the doctrine of res ipsa loquitur' in relation to it show that doctors and hospitals have been forced to shift the burden of proof through this theory. This paper tried to find out the implications of mitigating the burden of proof by reviewing various issues that might be related to medical litigation of hospital infection from a comparative point of view.
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KEYWORD
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HAI, Medical malpractice lawsuits, Res ipsa loquitur, Conspiracy of Silence, Liability for medical malpractice
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