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A Study on the Theory of Treatment Opportunity Loss - focusing on the debates in Japan and implications in Korea -

  • DONG-A LAW REVIEW
  • 2013, (58), pp.577-601
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

SONG YOUNGMIN 1

1동아대학교

Accredited

ABSTRACT

The theory of treatment opportunity loss appeared to solve the difficulties that validate the causal relationship between medical malpractice of the doctor and bad effect on the patient, thus the medical practice is basically a collaborative work that proceeds to treat a disease between a doctor and a patient. For collaborative working, there would be the premise that a doctor and a patient should do their best to fulfill the obligations, and the obligations should be based on their fiduciary relationship. The patient has the obligation to validate the causal relationship in traditional malpractice suits, however the theory of treatment opportunity loss can be considered as a new theory because it attempts to lighten the burden of proof of the causal relationship imposed on the patient, regarding ‘the opportunities to be treated’ as the benefit and protection of the law. On the other hand, the theory should be severely applied, considering it can destroy the traditional medical liability laws. Thus, they can be summarized as follows. Firstly, the treatment opportunity loss is acknowledged to be an independent benefit and protection of the law according to the theory of treatment opportunity loss. Thus, the theory of treatment opportunity loss should be understood as the benefit and protection of the law to create behavioral obligations of the doctor, considering as ‘the guarantees of the opportunities to be treated with a suitable level of medical care’, not considering as the problem of ‘damages’. Secondly, the theory of treatment opportunity loss originated from the difficulties to validate the causal relationship in the first place, so this theory would be confined to the case that it is difficult to validate the causal relationship and there is non-performance of the doctor. Thus, I suppose that it is necessary to review the malpractice due to non- performance of the doctor. Lastly, the amount of damages based on the theory of treatment opportunity loss should be confined to compensation.

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