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A study on medical malpractice liability insurance, etc.

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2014, 2(2), pp.53-100
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

Youngkook Kim 1

1법조협회

ABSTRACT

In medical disputes, the problems of ‘specialty and information asymmetry’ coexist between involved parties and these function as a significant factor in exploring a reasonable resolution. If medical disputes are to become a legal action, the burden on the injured party increases regarding how to prove a certain medical behavior by medical staff was accidental or intentional. It is controversial that medical behaviors with accused malpractice would be fairly assessed. That is because assessors such as assessing medical staff tend to be passive in proving a corresponding medical behavior was accidental or intentional. Also the longer the lawsuit becomes, the more the assessments need to be made according to the level of trials, thus, raising cost. The Act of the Damage Relief on the Medical Malpractice and Mediation for Medical Dispute in South Korea has been in force since 2012. The Act operates the subrogation payment system for damage compensation and assessment of medical behaviors under the assumption of medical dispute arbitration and mediation. Still, the system has only been less frequently utilized as the Korea Medical dispute Mediation & Arbitration Agency intervenes with own procedures under the consensus of involved parties. But, the system is expected to play a significant role if the principle of coercive appealing transposition is legislated. If medical accidents are to be assessed fairly by a public organization, accidentality or intentionality of a corresponding medical service provider will be impartially proven according to reasonable procedures. And ultimately, it will emerge significantly to realize damage compensation for victims or patients in an appropriate and swift manner. Now with the subrogation payment system in place for damage compensation in the country, if a victim requests subrogation payment for own receivable amount, the Korea Medical dispute Mediation & Arbitration Agency is regulated to indemnify for it first then later on receive from a party liable for the damage. In terms of relief for victim, such an institutional system is timely implemented. However, in order for medical staff to pursue medical behaviors on a stable basis by securing the ability to bear the financial responsibility independently, it needs to be mandated for them to have a liability insurance or medical malpractice insurance. In this recognition, the present article explored how to reinforce the specialty of the medical liability association and how to activate the medical liability system. Especially in this situation where remote medical practices have been widely adopted, profit-making hospitals are expected to rise and visiting foreign patients are surging, the national policies on medical insurance and liability systems should be reviewed by the government for their active application to ensure swift and proper resolution of medical disputes.

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