Medical Damages: Unlawful Acts Must Be Untangled Through Meticulous Legal Proof

-Legal Column by Attorney Yoon So-young, Daeryun LLC (Limited)

If a fatal medical accident such as an unexpected serious injury or death occurs at a hospital sought to treat an illness and recover health, the shock the patient and bereaved family suffer is beyond description. However, when they try to hold the hospital responsible without even a moment to compose their grief, the bereaved family runs into an enormous wall. This is because medical litigation not only requires highly advanced medical expertise, but is also a fight on an uneven playing field where all key evidence, such as operating room CCTV and medical records, is held by the hospital. Therefore, to win a damages lawsuit against a hospital, clear identification of the legal issues and proof of the facts—not an emotional appeal—are essential.

The first legal issue that can be contested in a medical accident lawsuit is whether there was a 'violation of the duty to explain.' Even in a situation where it is difficult to immediately uncover direct negligence in the medical procedure itself, there is ample room for a legal dispute. If the medical staff did not sufficiently explain to the patient before surgery the fatal aftereffects or complications that could occur, or other alternative medical options, this too is regarded as a serious unlawful act. This is because it infringed the patient's 'right to self-determination' to decide whether to undergo surgery after fully recognizing the risks. If a violation of the duty to explain is recognized, the patient's side can claim damages (consolation money) for mental suffering, regardless of whether there was medical negligence.

To be fully recognized as bearing liability for damages for medical negligence overall, the hospital's occupational negligence and unlawful act must be clearly uncovered. Medical staff have a 'duty of care' to take the best measures so that no danger arises to the patient, throughout diagnosis, examination, surgery, anesthesia, and aftercare. It must be proven that the medical staff deviated from the standard medical practice at the time and violated the duty of care, and that a causal relationship exists whereby that negligence caused a bad outcome such as death or permanent disability. Only then is liability for damages based on a tort under the Civil Act established.

In fact, among the cases I handled, there was a tragic case in which a patient who was recovering after an organ resection died. The bereaved family took issue with the hospital's poor response, but was agonizing over how to prove a clear causal relationship amid the limits of medical knowledge and a closed medical system. Upon taking on the case, I immediately and swiftly secured the medical records and anesthesia records and closely analyzed the situation. As a result, I found the occupational negligence in which the hospital had failed to take appropriate measures for the symptoms that arose in the patient, and after a fierce medical-record appraisal, I obtained recognition of the hospital's unlawful act and drew out a judgment ordering payment of damages.

Conversely, from the standpoint of hospitals and medical staff, one may face an unjust situation due to an unfair claim for damages. Since medical treatment fundamentally deals with the uncertainty of the human body, even doing one's best cannot guarantee a 100% perfect result. Even if a bad result occurs for the patient, it does not unconditionally translate into the medical staff's negligence. Therefore, medical staff should ordinarily prepare their medical records and nursing records in detail and transparently. Beyond using formulaic boilerplate text in the pre-surgery consent form, building a systematic system that specifically explains the risks to the patient and obtains a handwritten signature is the only line of defense.

In medical litigation, the promptness of the initial response determines success or failure. If one wastes time in emotional confrontation during the initial response process, it is easy to miss decisive evidence. Rather than remaining at a principled level of response, both the patient's side and the hospital's side should receive the assistance of a legal expert equipped with both medical knowledge and legal analysis capability from the early stage of the case. Systematically constructing the objective circumstances together with an expert and responding is the wisest way to prevent unexpected disadvantages and protect one's legitimate rights.

Reporter Lee Dong-oh (canon35@mt.co.kr)

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Medical Damages: Unlawful Acts Must Be Untangled Through Meticulous Legal Proof (Go)