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KMID : 1234820220230020039
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Korean Society of Law and Medicine
2022 Volume.23 No. 2 p.39 ~ p.65
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A Study on the Cooperation between Medical Care and Law - Focusing on the discussion of the role of clinical practice guideline in Japan -
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Song Young-Min
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Abstract
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There are two aspects of clinical practice guidelines that act as non-legal control before medical practice and as legal control standards after medical practice. The essential purpose of clinical practice guidelines is the former, but the latter action cannot be excluded. The clinical practice guidelines are a means of linking law and medical care.
The negative perception of clinical practice guidelines that medical professionals' autonomy can be violated by the enactment of clinical practice guidelines is an excessive negative evaluation of clinical practice guidelines. Rather, judicial judgment based on clinical practice guidelines plays a role in respecting the autonomy of medical professionals. In other words, the clinical practice guidelines suppress legal regulations on medical care as much as possible and are based on doctors' professional ethics and self-discipline, and patient awareness and cooperation.
In order to establish an ideal relationship of cooperation between doctors and patients, 'medical ethics' must be incorporated as a legal means. Clinical practice guidelines are the most appropriate means for incorporating such medical ethics into legal procedures.
The lawyer solves the case with a legal syllogism that establishes a norm and applies facts to it to conclude. For the resolution of medical disputes, Clinical practice guidelines are used to establish norms that doctors should perform for specific diseases, and conclusions are drawn by applying the established norms to specific medical practices. When it is not easy to apply the established norms to specific medical practices, medical judgments by experts, such as emotions, expert testimony, and explanations by expert members, are used. As such, the Law respects the autonomy of medical care even in the establishment of norms and the application of norms.
In particular, Clinical practice guidelines prepared independently by the medical community are referred to in establishing norms, which are the prerequisites for legal syllogism. This shows that doctors participate in the formation of precedents and contribute to the formation of norms.
The use of clinical practice guidelines in trials is respect and consideration for the autonomy of medical care. Although there may be an aspect in which the autonomy of individual doctors is limited by clinical practice guidelines, it should be considered that the autonomy of doctors as a group is respected. In this way, the clinical practice guidelines play a role in protecting the autonomy of the "medical" group from the logic of the "law."
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KEYWORD
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Clinical practice guideline, Medical standard, Medical negligence, Civil liability, Evidence based medicine shared decisionmaking
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