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KMID : 1234820200210010003
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Korean Society of Law and Medicine
2020 Volume.21 No. 1 p.3 ~ p.32
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Physician’s Duty to Inform Treatment Risk: Function, Requirements and Sanctions
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Lee Dong-Jin
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Abstract
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Under the Korean case law, physicians are obliged to disclose or inform the risk associated with a specific treatment to their patients before they perform the treatment. If they fail to do this, they are liable to compensate pain and sufferings. If the patient can establish that he or she would not have consented at all to the treatment had he or she been informed, the physicians are liable to compensate all the loss incurred by the treatment. In this article, the author examines the legitimacy of this case law from the perspective of legal doctrine as well as its practical affect on the medical practice and the furtherance of self-determination of the patient. The fundamental findings are as follows: The case law that has physicians who failed to inform treatment risk compensate pain and sufferings for the infringement of the right of self-determination seems to be a disguised and reduced compensation of all the loss based on the possible malpractice, which cannot be justified in view of the general principles of tort liability. It is necessary to adhere to the requirements of causation and imputation between the failure to inform treatment risk and the specific patient’s consent to the treatment. If this causation and imputation is established, all the loss should be compensated. Otherwise, there shall be no liability. The so-called hypothetical consent defence shall be regarded as a part of causation between the failure to inform and the consent. The suggested approach can preserve the essence of physician-patient relationship and fit for the very logic of informed consent better.
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KEYWORD
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Medical liability, Duty to inform treatment risk, Self-determination, Hypothetical consent, Causation
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