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KMID : 1234820070080020195
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Korean Society of Law and Medicine
2007 Volume.8 No. 2 p.195 ~ p.204
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Mitigation of Plaintiff’s Duty to Prove in Medical Malpratice Litigation - Focused on the Phrase "Layman’s Common Sense" in Supreme Court Precedents -
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Suk Hee-Tae
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Abstract
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It is a general principle that the plaintiff takes burden of proof about negligence and causation in a civil compensation litigation. And it is the same in a medical malpractice lawsuit. Korean courts have made diverse efforts to mitigate the plaintiff’s duty to prove in medical malpractice lawsuits under the name of justice and impartiality. One of those theoretical attempt is ’presumption of causation’. The Supreme Court, since 1995, has developed a new logic for the theory of ’presumption of causation’ which is characterized by a phrase "layman’s common sense". The Court presumes the defendant’s negligence and causation when the plaintiff alleges and proves the facts which can be pointed out and expressed by a layman with common sense. And if the defendant fails to prove that the result was caused by other fact than own medical activities, the defendant shall be defeated. I realize that this theory has problem for justice and impartiality. I would say that two fators should be considered and added to this logic. First,are defendant’s acts generally belonging to gross negligence which would cause that kind of bad result? Second, is it recognized that there would be the causation generally and statistically between the cause and the result?
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KEYWORD
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medical malpractice, burden of proof, mitigation of duty to prove, presumption of causation, layman’s common sense
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