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Reconstruction of ‘Standard of Medicine’ in Medical Malpractice Litigation

  • DONG-A LAW REVIEW
  • 2008, (41), pp.165-202
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

KIM MIN KYOU 1

1동아대학교

Candidate

ABSTRACT

This paper examines how to understand ‘Standard of Medicine(SOM)’ in judging medical negligence is appropriate. In conclusion, in judging negligence of doctors for medical malpractice litigation, it is not adequate to consider only SOM. It should be considered with ‘care duty’, as a content of duty of practice, based on the SOM. Furthermore, other criteria of duty of practice such as judgment of discretionary reasonableness, duty of information service(informed consent), duty of hospital transfer, and duty of post-explanation should be also deliberated. Therefore, SOM can be defined as follows. First, SOM implies Rule of Medical Practice (ROMP) based on medical knowledge and views that have been propagated and implemented by profound research and guarantee of reliability and safety which have been formed in the medical community via a series of medical evolution process. Therefore, in an aspect of the ROMP formed in the medical community, the SOM can be partially complicated "medical custom". However, it can be litter bit different with the medical custom in that it legally judges a medical negligence on violation of duty of practice related to an object of legal judgment. Second, although SOM mentioned as a ROMP above is placed as ‘a premise fact’ in judging medical negligence, it is to be also help receiving a legal judgment in an actual case. Hence, it should be considered as a duty of practice, so-called care duty via the legal judgment. As a result, it can be a practical rule. Furthermore, it can be a judgment rule from a legal judgment. Third, the ROMP existing as an actual fact is counted among duty of practice. It is judged as a Practical Norm(PN) and simultaneously it also goes through a process of Judgment Norm(JN). In particular, over a series of medical evolution process, it finally shows a circular movement connected with legal judgment. Therefore, the ROMP known as “a premise fact” in judging medical negligence of doctors always does not stay in a point of the fact. It is repeated as a circular movement(ROMP→PN→JN) via a procedure regulated by legal judgment and appraisal.

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