의료사고 피해구제와 처벌에 대한 법적 제언

Abstract

Anyone can suffer medical accident or malpractice. Unlike the past, the relationship between physician and patient has been changing as contract relationship. Medical dispute has been on the rise for the bad result of medical act. Medical litigation has been also increasing. But actually patient's prevailing in medical law suit is rare. In April 2011, Act on Remedies for Injuries from Malpractice and Mediation of Medical Disputes was enacted as legislation for the dispute resolution. The Act is for the purpose “to promptly and fairly injuries caused by medical malpractice and create a stable environment for medical services of medical professionals by providing for matters regarding the mediation and arbitration of medical disputes."(Art.1) The act has practical limit to remedy and to punish physician. But the Korean Constitutional Court decided : The Burden of proof of patient is that sincere investigation of public prosecutor is presupposed. In this article, I examine the contents of the Act and present the point to be complemented and critique. I point out the limit of Burden of Proof and the difficulties to punish the medical malpractice. And I do some proposals from a political and legal perspective. First, I point out to delete the doctor's criminal exemption provision and amendment the Act. Secondly, I suggest the Act should be separated as two Acts. One is for remedy of victim and the other is for punishment of offender. Thirdly, I insist that Patient Safety and Quality Improvement Act should be enacted. Fourth, reporting about medical accident should be duty of medical agency.