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ART001782425 | oai_dc | 2012년 주요 의료 판결 분석 | Review of 2012 Major Medical Decisions | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이정선(법률사무소 건우); 이동필(법무법인 로엠); 유현정(유현정 법률사무소); 정혜승(법무법인 세승)"
] | In 2012, the major jurisdictions regarding medical cases caused the controversial issues towards medical and legal fields by getting the judgments from the Supreme Court, which admitted the exceptional admissibility on discretionary grant. By regarding the serial negligence of medical organizations as a separate tort, the sentences which made up irrationality, were spoken by the court.
As a result, if the treatment was made, which did not follow the entered matters in medical documents attached, the court announced the jurisdiction that presumes the negligence, which provided the evidence of negligence; on the other hand, this gave had the burden to medical branch to take great care for medicinal treatment.
To be applicable for the Principle of Trust, the doctors have to give and take the necessary information for the treatment process and symptom decisions, which also commented in the court. Thus, this case made it difficult to apply the Principle of Trust and considered all the conditions as tough ones, which eventually induced lesser faults for patients' care.
Moreover, the court confirmed that the medical ads sending the emails to the members belong to the internet portal sites, are not the inducing behavior by considering that the actions are only medical ads. Furthermore, in the case of Namsu Kim, the court's interpretation was rather limited the definition for medical practice that announced limited Erweiterung der Strafbarkeit cases by lower courts.
As a consequence, it is very interesting whether the Supreme Court may change their position and concerning the duty of explanation, the trend to expand the contents and scopes for the duty of explanation continues by admitting instruction explanation obligation and all the compensations and so on. | 법학 | null | kci_detailed_000159.xml | |||
ART001782409 | oai_dc | 미국 의료개혁법의 의료보험 의무가입 제도에 대한 연방대법원의 합헌결정 | The Constitutionality of Individual Mandate under the U.S. Patient Protection and Affordable Care Act of 2010 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이원복(하버드 로스쿨 박사과정)"
] | The Unites States has been plagued with soaring health care costs and an alarmingly large number of uninsured population. The Patient Protection and Affordable Care Act of 2010 ushered in the most sweeping health care reform in the United States since the introduction of Medicare and Medicaid in 1965 to address these issues. The law’s requirement for individuals to purchase health insurance (the so-called “individual mandate”), however, not only caused a political stir but also prompted constitutional challenges. Some questioned whether the federal government, lacking general police power, could require its citizens to buy unwanted insurance based on its enumerated powers under the U.S. Constitution. This paper summarizes the decision of the U.S. Supreme Court on the constitutionality of individual mandate, and explores how the decision relates to Korea’s own universal health care.
| 법학 | null | kci_detailed_000159.xml | |||
ART001782455 | oai_dc | 지정토론문 - 중독에 대한 의료적 이해와 법적 이해의 소통을 기대하며 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이해국(가톨릭대학교)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001782351 | oai_dc | 의료분쟁조정법의 기본이념과 현실 | Fundamental Idea and Actuality of the Medical Dispute Mediation Act | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김민중(전북대학교)"
] | Medical treatment has great potential for conflict. Even the best-trained doctors can commit medical malpractice that result in continuing physical or mental disabilities or even death. Medical conflicts have been increasing over years. The medical conflicts between patient and medical professionals that result from medical professionals’ mistakes are often fueled by a violation on the pretext of the injuries form medical malpractice and can lead to litigation. The litigation usually cost a lot of money and time. The extension of the litigation period as well as expensive cost and lack of medical knowledge placing a great burden on patients.
Alternative Dispute Resolution(ADR) is more efficient than litigation. In 1988, the medical dispute mediation system has been introduces as the Act on Remedy for Damage from Medical Accident and Medical Dispute Mediation by Korean Medical Association came into effect after 23 years of enactment efforts. Medical Dispute Mediation Act(hereinafter referred to as the “MDMA”) has finally entered into force from 8 April 2012.
The purpose of the MDMA is to promptly and fairly redress injuries caused by medical malpractice and create a stable environment for medical services of public health or medical professionals by providing for matters regarding the mediation and arbitration of medical disputes(MDMA §1). In an effort to secure the fair, speedy and inexpensive resolution of every malpractice case, the Korea Medical Dispute Mediation and Arbitration Agency(hereinafter referred to as the “K-MEDI”) was established. Following the MDMA, the K-MEDI shall endeavor to ensure the medical dispute mediation or arbitration proceedings are conducted in a prompt, fair, and efficient manner, and patients and medical professionals shall attend proceedings in good faith with mutual trust and understanding when they participate in medical dispute mediation or arbitration proceedings. | 법학 | null | kci_detailed_000159.xml | |||
ART001782361 | oai_dc | 의료분쟁조정제도 운영에 따른 문제점 및 개선 방안 | The Problems in the Medical Dispute Mediation Process According to the "Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes" and the Alternative Propsal | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"황승연(한국의료분쟁조정중재원)"
] | Korea Medical Dispute Mediation and Arbitration Agency, “K-MEDI” in abbr. herein-after, is established on Apr. 9, 2012 according to the law cited in the title above for the purpose of settling medical disputes in a prompt, fair and efficient manner. Two special professional organizations are established in K-MEDI, one of them is Medical Dispute Mediation and Arbitration Committee(hereinafter referred to as the “Mediation Committee”) and the other Medical Malpractice Appraisal Board(hereinaf-ter referred to as the “Appraisal Board”), the mission of the latter is to investigate the facts concerning the disputed medical conduct and to research as to and apprai-se whether the medical conduct was negligent and whether a causal relationship exists.
Each panel organized in the Mediation Committee or the Appraisal Board shall be comprised of five mediators or appraisers, including necessarily a judge or a prose-cutor respectively and any disputed case regardless of the scale, the importance or the complicacy shall be handled by a panel. As the system is not thought efficient or economic, the number of the members comprising a panel or total members com-prising the Mediation Committee or the Appraisal Board shoud be adjusted, and the process shoud be versified, including the “Rapid Process,” for instance.
A petition for the mediation of a medical dispute shall be rejected if the respondent fails to notify K-MEDI of his/her intention to accede to the mediation within 14days from the day on which the petition for the mediation was served(Art. 27 Cl. 7). As the option of an arbitrary decision whether the mediation proceedings shall be commenced or not given to the respondent by the clause is thought unfair, making the process unstable, and moreover, diminishing the purpose of the system established by the law cited above for solving the medical disputes, the clause shoud be amended not to allow the respondent the option of such an arbitrary deci-sion.
K-MEDI shall conduct the “Program for Compensation of Medical Accidents”(Art 46) according to which unavoidable injuries caused by the medical accidents in the cour-se of childbirth and the “Advances for Damages”(Art. 47) that are the compensa- ting moneys paid to victims in medical malpractice cases who fail to receive money at all or partly from the operator or the professional of a public health or medical institution although he/she has a final and conclusive right to be paid by them. Some operators or professionals of such institutions claim that both the programs violate their fundamental rights assured by the constitution, and that it be a justifica-tion of refusal to accede to the mediation. As any of the programs needs not to be conducted by K-MEDI, it may be a proper solution to change the conductor of the programs to avoid the unproductive controversy.
(The expression of the title and the contents of the Act is cited from www.klre.re.kr.) | 법학 | null | kci_detailed_000159.xml | |||
ART001782400 | oai_dc | 우리나라 보건의료법의 현황과 과제-법정책학적 연구방법론을 중심으로- | The Present State and Subject of Health Care Law System in Korea | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"조형원(상지대학교)"
] | There is the limit of the traditional legal hermeneutics and fragmentary or individual theoretical legal approach to suggest the desirable solution of Korean health care law system to have many issues. Law & politics research is the legal research method to suggest the resonable understanding and seeking the measures through various approach, decide and evaluate that the legal methods can be functioned as the optimum system design.
Law & politics research has some procedure. 1. It is demanded to catalog the comparison target of legal system by its topic. 2. It is demanded to compare it with Korean situation. 3. The realistic and empirical legal research to the compared policy alternatives is needed. 4. Reflecting the results of this research work, the desirable policy idea must be adopted. 5. The accomplishment of this policy idea must be come true as a specific legislation through interest coordination. 6. This plan must be come into force and the feedback to effect of society must be examined closely.
Here I will review generally the contribution of law & politics research to health care law system because of the problem of time and the insufficiency of law & politics research.
The constitutional consideration is important to support the interest coordination because of the shortage of resources. The comparative law research can compare our health care system with those of other countries and seek some desirable alternatives. If we discuss the law system plan in a long time and synthetically from different perspectives, more desirable helath care law system can be deducted. | 법학 | null | kci_detailed_000159.xml | |||
ART001782391 | oai_dc | 기대권침해론에 관한 일본의 최근 동향 | Recent Trends in the Theory of Expectation Rights Violations in Japan | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"송영민(동아대학교)"
] | The concept of expectation rights considers 'the expectation' that the patient should be given proper medical treatment as the benefit and protection of the law, so it would be the benefit and protection of the law due to personal rights different from 'the legal principle that has the possibility to a considerable extent' being in an extension of life and body.
However, the problem how the patient's expectation of medical service sets up in order to make it the benefit and protection of the law would be still left in the vague concept of the patient's 'expectation', thus, in the first place, the medical practice following formed medical standard in every particular medical institutes should be the standard because these medical services are normally within a range of the patients' expectations.
In addition, it should be naturally constituted as mental profit to get the subjective circumstances such as 'the patient's expectation' to be an object, and also, different from the profit and protection of the law such as life and body that should be absolutely protected, the origin of violation behavior should be regarded simultaneously to define the denotation of expectation rights.
Therefore, the expectation rights violations would be problematic in case it fails to reach the medical standard that is expected for common doctors to practice properly. This is the concept of expectation rights that gets subjective matters such as the patient's expectation to be objectivity as medical practices that can be expected by generalized abstract doctors. This standard should be defined as the minimum standard that is naturally expected for doctors to practice, different from medical standard that decides the level of doctors. | 법학 | null | kci_detailed_000159.xml | |||
ART001782333 | oai_dc | 우리나라 약물중독의 치료 실태와 대책 | Current Situation of Substance Abuse and Treatment Strategies | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"조성남(을지대학교 강남을지병원)"
] | Korea has been recognized as a safe country about the substance abuse, but now is not safe country because there are over 10 thousand drug related offenses in a year since 1999. Seventy percent of them are drug abusers, so Korea government must have stronger political strategies about the prevention and the treatment of the drug abuse. Till now Korea government has focused on the imprisonment rather than the treatment for the drug abusers. So the relapse rates are over 40% among the incarcerated drug abusers. Now we need more treatment strategies and development of treatment methods to decrease the relapse rates.
Substance abuse is a brain disease with a chronic relapsing nature and has a bio-psycho-social etiology. So treatment process has three steps, motivation enhancement treatment for substance–free lifestyle, rehabilitation aimed at maximizing multiple aspects of life functioning, and relapse prevention.
To improving the treatment strategies the Government must execute the national survey about the substance abuse, enforce a law to operate the drug court and to sentence a treatment order with a probation, and establish a national addiction institute for study and education about the substance abuse. | 법학 | null | kci_detailed_000159.xml | |||
ART001782436 | oai_dc | 말기의료에 관한 미국 법제의 연구-말기의료결정 제도를 중심으로 | Legislative Approaches to Terminal Care Issue in the U.S.A. -Acts on Terminal Health-Care Decision | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"석희태(경기대학교)"
] | The first legislation for terminal health-care decision was California’s Natural Death Act (NDA) of 1976 that permitted any adult person to execute a directive directing the withholding or withdrawal of life–sustaining procedures.
Advance directive legislation has subsequently progressed on a state-by-state basis. By 1992, all 50 states, as well as the District of Columbia, had passed legislation to legalize some form of advance directive.
This state legislation, however, has resulted in an often fragmented, incomplete, and sometimes inconsistent set of rules. Statutes enacted within a state often conflict and conflicts between statutes of different states are common.
In an increasingly mobile society where an advance health-care directive given in one state must frequently be implemented in another, there is a need for greater uniformity.
In 1993, the Uniform Law Commissioners approved the Uniform Health-Care Decisions Act (UHCDA) in order to bring order to the existing chaos. Unfortunately, the Commissioners waited too long to act. By the time the UHCDA was approved, nearly all states had passed legislation governing advance directives.
Consequently, the UHCDA has achieved only a limited success, picking up but one or two enactments a year. The UHCDA is currently in effect in around 10 states: Alabama, Alaska, California, Delaware, Hawaii, Kansas, Maine, Mississippi, New Mexico, Tennessee, Wyoming.
In these states the previous laws related to the subjects have been all repealed.
The overall objective of the UHCDA is to encourage the making and enforcement of advance health care directives including living will or individual instruction, power of health-care attorney and to provide a means for making health care decisions for those who have failed to plan.
The U. S. House of Representatives in 1991 enacted the Patient Self- Determination Act (PSDA). The Act stipulates that all hospitals receiving Medicaid or Medicare reimbursement must ascertain whether patients have or wish to have advance directives. The Patient Self- Determination Act does not create or legalize advance directives; rather it validates their existence in each of the states.
Now in America, terminal health-care decision or advance directive for health care is common and universal system. The problem, however, is how to let more people use these good tools to make their lives more beautiful and honorable. | 법학 | null | kci_detailed_000159.xml | |||
ART001782382 | oai_dc | 의료판례에서의 인과성과 책임귀속의 판단-독일법원 판결례와의 비교 고찰- | Eine vergleichende Betrachtung der Haftungszurechnung im Arztrecht | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"안법영(고려대학교)"
] | In der vorliegenden Arbeit geht es um die vergleichende Betrachtung von deutschen Urteilen OLG München, Urt. v. 21. 4. 2011 - Az. 1 U 2363/10; BGH, Urt. v. 22. 5. 2012 - VI ZR 157/11) und einer Reihe von koreanischen Urteilen im Bereich des Arzthaftungsrechts. Sie behandelt die Kausalität von Tatbestand und Rechtswidrigkeitszusammenhang in der normativen Haftungszurechung.
In Korea gilt die sog. Adäquanztheorie noch entscheidend als bewertendes Zurechnungskriterium – sogar manchmal als umgangssprachliches Homonym im Sinne der Verhältnismäßigkeit angewendet -, die dogmengeschichtlich von Deutschland übernommen wurde. Doch wie aus den deutschen Urteilen ersichtlich, ist sie dort schon überwunden. Die Ergebnisse der betrffenden koreanischen Urteile sind zwar nicht unbillig, deren Urteilsbegründungen aber theoretisch bzw. praktisch nicht überzeugend. Nach allgemeiner Ansicht kommt es vielmehr auf den Schutzzweck an, der auch bei der Anwendung des § 393 KBGB gelten kann.
Schließlich würde die Übertragung des praxisgerechten Lösungsansatzes in deutschen Urteilen auf rechtsvergleichende Weise dazu beitragen, die Zivilrechtspraxis in der koreanischen Justiz nachvollziehbarer machen. | 법학 | null | kci_detailed_000159.xml | |||
ART001782376 | oai_dc | 의료분쟁조정법 시행에 따른 성과와 과제 | The Outcomes and Tasks of Act on Medical Dispute Mediation | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"현두륜(법무법인 세승)"
] | After several bills for the reasonable medical dispute resolution had been proposed for over twenty years, “Act on Remedy for Damage from Medical Accident and Medical Dispute Mediation” was eventually enacted on April 7, 2011 and came into effect from April 8, 2012. This study evaluates the achievements and results of the past year, suggesting the future improvements or tasks.
The main issue of Act on Medical Dispute Mediation is Korea Medical Dispute Mediation and Arbitration Agency. Therefore, the success of the Act depends on the outcomes of Korea Medical Dispute Mediation and Arbitration Agency. Although the Act has been enforced for only one year, this paper examines the outcomes of the Agency with limited materials for its development. Korea Medical Dispute Mediation and Arbitration Agency was established for rapid, fair, and effective medical dispute resolution. Thus, the evaluation of the performances of the Agency is based on the 1) rapidness, 2) fairness, and 3) effectiveness of the dispute resolution. To sum up, the system earned positive evaluations as for the rapidness and fairness, but some problems were indicated with regard to the effectiveness.
As the system of medical dispute mediation and arbitration in Korea has no parallel in the world, other countries show many interests in it. The rapid and fair medical dispute resolution is of benefit in both patients and medical institutes and decreases social costs. As the Act had a difficult passage through Parliament, it should be maintained and improved continuously. | 법학 | null | kci_detailed_000159.xml | |||
ART001724135 | oai_dc | 의약품 임상시험에서 피험자 보호 | A Study on the Protection of Trial Subjects in Clinical Trials of Investigational New Drug | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"위계찬(충남대학교)"
] | This study focuses on the protection of trial subjects, who participate in clinical trials for new drug. It takes long time to develop new drugs and the clinical trials are required. Usually, pharmaceutical company, which develop new drug, request a research institution(usually, hospital) to investigate the examination of security and side effects of new drug. The institution recruit trial subject to participate in the trials. The contract for clinical research of investigational new drug is concluded between the pharmaceutical company and the institution.
This thesis studies the legal regulations for protection of participants of clinical research for new drug. In this respect the first matter of this study is to seek which relation between pharmaceutical firm and participants of clinical trials. Especially, there is a question which the trial subject is entitled to demand the pharmaceutical company which requested clinical trials the institution to supply the investigational new drug, after the contract for clinical trials had terminated or cancelled. This study take into account the liability of the pharmaceutical company to trial subject.
Secondly, it is researched the roles and authority of Institutional Review Board(IRB). IRB is Research Ethics Committee of the institution, in which clinical trials for new drug are conducted. According to the rule of Korea good clinical practice(KGCP), IRB is the mandatory organization which is authorized to approve, secure approval or disapprove the clinical trials for investigational new drug in the institution. The important roles are the review of ethical perspective of trial research and the protection of trial subject.
Thirdly, this paper focuses if the participants are to be paid for the participation for clinical research. This is ethical aspect of clinical trials. It is resonable that the participant is reimbursed for expenditure such as travels, and other expenses incurred in participation in trials. It is not allowed that the benefit of clinical trials is paid to trial subject. The payment should not function as financial inducements for participations of trials.
Finally, the voluntary consent of the trial subject is required. The institution ought to inform the subject, who would like to participate in trials, and it ought to received informed consent in writing for subject. In this regard, it is matter that trial subject has ability of consent. It is principle that the subject as severely psychogeriatric patient has not ability of consent. However, it is required that not only healthy people but also patients are allowed to take part in clinical trials of new drug, in order to confirm which the investigation new drug is secure. Therefore there are cases, in which the legal representative of subject consent the participation of the trials.
In addition, it is very important that the regulations concerning clinical trials of new drug is to be systematically well-modified. The approach of legal and political approach is needed to achieve this purpose.
| 법학 | null | kci_detailed_000159.xml | |||
ART001724156 | oai_dc | 미성년자에 대한 의료행위와 부모의 권한- 종교상의 신념에 기한 수혈거부를 중심으로 - | Behandlung von Minderjährigen und Bluttransfusionsverweigerung durch die Eltern | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김민중(전북대학교)"
] | Die Zeugen Jehovas lehnen Bluttransfusionen ab. Wiederholt haben Todesfälle unter Jehovas Zeugen, die mit der Ablehnung von Bluttransfusionen in Verbindung gebracht werden, in den Medien für Aufsehen gesorgt, da die Zeugen Jehovas die Übertragung von fremdem Blut aus religiösen Gründen entschieden ablehnen.
Medizinische Behandlungen, auch Bluttransfusionen bedürfen grundsätzlich der Einwilligung des Patienten. Wenn sich ein Zeuge Jehovas gegen eine Transfusion entscheidet, ist dies zu respektieren. Ist ein erwachsener Patient Mitglied der Zeugen Jehovas und trägt dieser eine Patientenverfügung bei sich, die eine Bluttransfusion ablehnt, weil es dadurch zu einer "Zerstörung der Persönlichkeit" des Menschen aus religiösen Gründen komme, so ist auch diese Verfügung verbindlich, sofern sie ernsthaft ist.
Bei Minderjährigen ist die Einwilligungsfähigkeit durch den Gesetzgeber bislang nicht geregelt. Minderjährige können grundsätzlich selbst zustimmen, wenn sie ihrer geistigen und sittlichen Reife nach einsichtsfähig sind. Bei Jugendlichen ab dem 16. Lebensjahr muss der Arzt ermitteln, wie einsichtsfähig sie sind und inwiefern sie selbst in die medizinische Behandlung einwilligen können. Einwilligung kann aber nicht eingeholt werden, wenn der Patient einwilligungsunfähig ist. Bei Kindern bis zum 16. Lebensjahr ersetzt die Einwilligung der Eltern in die medizinische Behandlung die Einwilligung der Kinder.
Ob die Entscheidungen der Eltern über ihre unmündigen Kinder im Fall lebensbedrohlicher Krankheitsverläufe von den behandelnden Ärzten akzeptiert werden müssen, ist umstritten. Die Ablehnung einer Bluttransfusion für ein transfusionsbedürftiges Kind wäre eine Kindeswohlgefährdung. Bei Kindern ist der Weg über die Übernahme des Sorgerechts durch das Gericht unvermeidlich, falls die Eltern auf der Ablehnung einer lebensnotwendigen Transfusion beharren. Im Rahmen der objektiven Interessenabwägung ist der Grundsatz “in dubio pro vita” zu beachten. Bei erheblicher unmittelbarer Gefahr ist allerdings ein direktes Eingreifen nötig. | 법학 | null | kci_detailed_000159.xml | |||
ART001724168 | oai_dc | 연명치료중단에 대한 추정적 의사 | Presumed Will of Pause or Stop of Meaningless Life Extension | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김필수(대한병원협회)"
] | The Korean supreme court said that Mrs Kim who was in a persistent vegetative state had a right to die if she had a presumed will or assumption of dying against Severance hospital in 2009. Presumed would be vague and can not be subjective to conjecture though, the court had a developed trial on the case. I recommend the higher valued notion such as the 'right to decide on the life extension' is more logical than assumptive will. To achieve this recommendation, I will search right to life, right to decision, human dignity and find the good relationship between them. In conclusion, I will announce that if PVS patients without advanced directives aren't able to express their will and no one could not assume their right to die in spite of meaningless life extension. So only the due and strict procedure about the extinction of meaningless PVS patients will allow them to sacrifice themselves or remove life extension ventilators. Also active euthanasia would be possible under the strict procedure of making advanced directives and the act of helping active euthanasia additionally, the crime of abetting suicide would not be executed in the legal scope.
| 법학 | null | kci_detailed_000159.xml | |||
ART001724118 | oai_dc | 이른바 ‘여의도 성모병원 임의비급여 사건’에 대한 소고(의학적 관점을 강조함) | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김필수(대한병원협회)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001724113 | oai_dc | 임의비급여 허용요건에 관한 검토 | Review of Allowable Condition of the Discretionary not Covered Service | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박태신(전북대학교 법학연구원)"
] | The Supreme Court stand in the position in specific lawsuit that it doesn't allow the discretionary not covered service, but recently in revocation suit of fine disposal that is imposed on medical fee of leukemia patient, it altered the existing adjudgement and admitted the discretionary not covered service exceptionally. It put forward the allowable condition roughly in that case. According as this alteration, it has become more important to embody the allowance conditions of exceptions.
The Supreme Court presented three things, which are procedural condition, medical condition and subscriber's agreement.
Concerning procedural condition, several present conciliation procedures are as follows: medical care benefit arret request, relative value conciliation etc, prior request on anti-cancer drug among chemicals which exceed acceptance criteria, request of non benefit object on common drugs. To be granted the existence of those system, there should be no obstacle to use that. Even if it were so, we should take circumstances into consideration; individual situation is unescapable concerning substance and urgency of the discretionary not covered service, process of the procedure, time required etc.
Regarding medical condition, safety and effectiveness will be verified through evaluation procedures of new medical skill. About the necessity, the Supreme Court made clear through a sentence that it allow the discretionary not covered service, in case that needs to treat a patient out of the standard of medical benefit. Strict interpretation is right and it answer the purpose of the sentence that the supreme court permit the discretionary not covered service, exceptionally. We need to differentiate medical necessity and medical validity.
Subscriber's agreement should holds true if it entails full explanation, and if it is preliminary, explicit and individual. On this account, it should be difficult to admit that someone agree effectively when he call for the affirmation that he is recipient of medical care. Reasonable expense needs to be a part of review whether the agreement is valid.
Meanwhile If we adjust system of medical expense and eventually reorganize a fee for consultation payment system (Fee-for-service controlled by item to DRG (Diagnosis Related Groups)), controversial area of the discretionary not covered service will be decreased and that will guarantee the discretion of the doctor. | 법학 | null | kci_detailed_000159.xml | |||
ART001724131 | oai_dc | 국민건강보험공단의 요양급여비용 환수과정에 있어서 법적용 정밀성에 관한 검토 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"문현호(대법원)"
] | 지정토론문 | 법학 | null | kci_detailed_000159.xml | ||||
ART001724172 | oai_dc | 외국인환자와의 의료분쟁에 관한 연구 | A Study of the Medical Disputes with Foreign Patients | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정정일(경기대학교)"
] | Although the number of foreign patients visiting Korea for medical treatments or plastic surgery is rapidly increasing, countermeasures against unforeseen medical disputes involving foreign patients are adequate. To date, the record shows that most foreign patients have visited doctors at the departments of family medicine, internal medicine, dermatology (incl. plastic surgery), and healthcare centers, which, fortunately, indicates that there are not many severe, high risk patients. However, if the current growth rate continues to rise and the number of foreign patients visiting each department continues to grow, more diverse medical practices will be likely to take place in the future, and consequently, it is expected that the possibilities of medical malpractice and the costs of dispute resolution will also rise dramatically.
When a medical dispute occurs, in general, a lawsuit is ultimately settled by the court. However, since this can damage the creditworthiness of medical institutions and also incur significant litigation costs, which is a typical characteristic of a medical lawsuit, medical professionals or institutions will be heavily burdened. Furthermore, an adequate policy or countermeasure against a medical dispute with a foreign patient has not yet been established, and it would be difficult to resolve a dispute by finding the middle ground, due to relative standards and policies between countries. Now, we need to improve the existing policies and prepare for countermeasures that will allow us to precisely predict the nature of such disputes, which have been increasing, and resolve them peacefully.
Based on such knowledge, this study aims to establish countermeasures against medical disputes with foreign patients, and examine ways to promptly and reasonably resolve them at an early stage. | 법학 | null | kci_detailed_000159.xml | |||
ART001724141 | oai_dc | 의료기관 내부의 신체감정절차와 향후치료비 산정에 대한 문제점의 고찰 | An Investigation on Problems in the Procedures of Expert Opinion and Estimation of Future Medical Expenditure of Medical Institutions An Investigation on Problems in the Procedures of Expert Opinion and Estimation of Future Medical Expenditure of Medical Institutions | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"강요한(중앙대학교병원); 김필수(대한병원협회); 문상혁(백석대학교)"
] | Civil proceedings, surveyed results and medical expenses that are evidenced by expert witness are just one of the methods of proof. Since a judge makes decision by synthesizing all evidences on a concerned case, thus the judgement would be different from that of expert witness. It is not rational for medical institutions, of which priorities are medical treatment, to give priority to disability decision. However, despite of its importance, medical institutions less recognize about the necessity of procedural stability and predictability in expert valuation. It is necessary to identify actual problems and investigate rational alternatives to acquire fairness in valuation procedures and accuracy in calculating future medical expenses. Therefore, this research explores the problems and realities of evaluation process in medical treatments, and then discuss the alternatives of written expert opinion and estimation of future medical expenses. | 법학 | null | kci_detailed_000159.xml | |||
ART001724154 | oai_dc | 의료사고의 손해배상과 위자료 산정-한국소비자원 의료피해구제 사례들의 일별- | Assessment of Damages for Non-pecuniary Loss and Compensation for Damages in Medical Accidents-Overview for Cases of Medical Injury Relief in Korea Comsumer Agency- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김경례(한국소비자원); 안법영(고려대학교)"
] | There are two opinions on the legal characteristics of damages for non-pecuniary loss, a private sanctions theory and complementary function of damages for non-pecuniary loss, briefly. There is a close connection between the legal characteristics and the function of damages for non-pecuniary loss. The functions of damages for non-pecuniary loss are consist of satisfaction, prevention(sanctions) and complementation.
Several cases of medical injury relief reported to Korea Comsumer Agency are categorized as follows, 1) cases of death after having an operation, 2) diagnosed with disability after a medical accident, 3) extended damages happening related to delayed diagnosis, 4) et cetera(a plastic surgery, a treatment with oriental medicine), and the damages for non-pecuniary loss in respect to each cases are examined.
In the case of occurring death or disability, Korea Comsumer Agency has set up guidelines for assessment of damages for non-pecuniary loss by classifying into major and collateral violation for a duty of care. Furthermore, the damages for non-pecuniary loss in the case of all sorts of cancers, are assessed in accordance with the degree of responsibility subsequent to dividing cancer into good and poor prognosis. When it comes to a complementary function of damages for non-pecuniary loss in the actual work, it is hard to assess the damages as it is difficult to objectify non-pecuniary loss, such as emotional distress.
Though compensation for damages is major legal characteristics of consolation money, preventing a damage(private sanctions) through consolation for a victim or sanctions against an assailant also has great significance. Therefore, it is necessary to approach flexibly for mutual agreement by considering specialty(concrete facts) of individual issue thoroughly. If considering this aging society that limits the possible age for work to 60 years old, it is needed to have a complementary function of consolation money in mind not to make it less meaningful for victims due to small sum of consolation money. | 법학 | null | kci_detailed_000159.xml | |||
ART001724162 | oai_dc | 한방의료행위의 개념요소와 유형에 관한 법적 고찰 | Study on Conceptual Factors and Types of Korean Medical Practice | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이부균(부산대학교)"
] | Medical Act. article 2 (3) stipulates that “a korean medicine doctor is in charge of providing korean medical practices and korean medical health guidance”. But, without a definition article about korean medical practice, the legal concept of it is defined by supreme court cases according to specific legal trials.
To establish the concept of korean medical practice, it must be included that the common parts of practice of medicine involving “the purpose of practice”, “the subject of practice”, “the object of practice” and “other dangers”, as well as the special parts of conceptual elements of korean medical practice involving “korean medicine principle” and “differentiation” and also “manufacturing of korean medicine”.
Accordingly, the definition of korean medical practice is defined as examining, diagnosing, differentiating, prescribing, manufacturing of korean medicine, treating, korean medical care guiding so as to treat diseases and to promote and to maintain health, based on korean medicine as traditionally handed down from the nation's ancestors and korean medicine principle which is scientifically developed and applied and also includes a practice that will cause physiological danger to human body and/or bring harm to public health and sanitation if it is not perfomed by korean medicine doctor. | 법학 | null | kci_detailed_000159.xml | |||
ART001724146 | oai_dc | 금지되는 기사성 의료광고의 한계 | A Limit of the Prohibition of Article Type Medical Advertisement | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"유현정(유현정 법률사무소)"
] | Korea’s medical law prohibited medical advertisements in principle and permitted them on an exceptional cases. However, the decision of the Constitutional Court of 20005. 10. 27. 20003 Heonga 3, it was changed to a negative system which allows advertisements in principle and restricted only exceptionally. Dramatic increase of medical advertisements was made after that and many argued more deregulation because there was actually heavy regulations. In particular, there is almost no actual regulation on the article type advertisement due to the reason of protection of the freedom of press, media and occupation.
However, there may be an unjust result if a specific article or specialists’ opinion is made using a newspaper, broadcasting or magazine as a form of article type advertisement to specific medical specialists or medical institution or medical treatment method that falsifies consumers or makes consumers confused by unjust medical expectations or reliability, that also deteriorates just competition and that causes the misrecognition of consumers. In fact, there were actual damages of article type advertisements on the eye whitening surgery not long after the transfer to a negative system of medical advertisements. Victims raised a medical proceeding against the doctor who carried out the surgery, but there is actually no systematic warranty except for the indemnity request. Thus, this case demonstrated a vulnerable result of a negative system.
As such, it is problematic that there is no proper regulations defined in the current law and regulations because of the reason of the protection of the freedom of press, publication and occupation despite damages of such article type advertisements. Accordingly, it is urgent to apply the current prevention regulations on the article type advertisements strictly, and to set up specific regulations. | 법학 | null | kci_detailed_000159.xml | |||
ART001724128 | oai_dc | 국민건강보험공단의 요양급여비용 환수과정에 있어서 법적용 정밀성에 관한 검토-특히 임의비급여를 중심으로- | An Examination of the Exactitude of Legal Application behind the National Health Insurance Corporation’s Practice of “Collection and Disbursement” of Paid Medical Expenses (With an Emphasis on Arbitrary Denial of Coverage) | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"송명호(법무법인 서정)"
] | The National Health Insurance Corporation has been retrieving from health care providers the payments made to them by insured patients as a result of the health care providers’ arbitrary denial of coverage under the National Health Insurance, and has been disbursing such retrieved monies back to the patients, pursuant to Article 57, Sections 1 and 4 of the National Health Insurance Act. However, such practice is an application of the law that lacks legal exactitude.
Another problem with such practice is that there is no legal provision under any laws or notices that expressly prohibits arbitrary denial of coverage.
A legislative solution, therefore, is called for to address these issues. | 법학 | null | kci_detailed_000159.xml | |||
ART001670094 | oai_dc | 보건의료정보의 법적 보호와 열람․교부 | A Study on Legal Protection, Inspection and Delivery of the Copies of Health & Medical Data | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정용엽(경희의료원)"
] | In a broad term, health and medical data means all patient information that has been generated or circulated in government health and medical policies, such as medical research and public health, and all sorts of health and medical fields as well as patients' personal data, referred as medical data (filled out as medical record forms) by medical institutions. The kinds of health and medical data in medical records are prescribed by Articles on required medical data and the terms of recordkeeping in the Enforcement Decree of the Medical Service Act.
As EMR, OCS, LIS, telemedicine and u-health emerges, sharing and protecting digital health and medical data is at issue in these days. At medical institutions, health and medical data, such as medical records, is classified as “sensitive information” and thus is protected strictly. However, due to the circulative property of information, health and medical data can be public as well as being private. The legal grounds of health and medical data as such are based on the right to informational self-determination, which is one of the fundamental rights derived from the Constitution. In there, patients' rights to refuse the collection of information, to control recordkeeping (to demand access, correction or deletion) and to control using and sharing of information are rooted.
In any processing of health and medical data, such as generating, recording, storing, using or disposing, privacy can be violated in many ways, including the leakage, forgery, falsification or abuse of information. That is why laws, such as the Medical Service Act and the Personal Data Protection Law, and the Guideline for Protection of Personal Data at Medical Institutions (by the Ministry of Health and Welfare) provide for technical, physical, administrative and legal safeguards on those who handle personal data (health and medical information-processing personnel and medical institutions). The Personal Data Protection Law provides for the collection, use and sharing of personal data, and the regulation thereon, the disposal of information, the means of receiving consent, and the regulation of processing of personal data.
On the contrary, health and medical data can be inspected or delivered of the copies, based on the principle of restriction on fundamental rights prescribed by the Constitution. For instance, Article 21(Access to Record) of the Medical Service Act, and the Personal Data Protection Law prescribe self-disclosure, the release of information by family members or by laws, the exchange of medical data due to patient transfer, the secondary use of medical data, such as medical research, and the release of information and the release of information required by the Personal Data Protection Law. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670095 | oai_dc | 적절한 의료를 받을 기대와 손해배상책임 여부-일본 최고재판소의 최근 판결을 중심으로- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"류화신(충북대학교)"
] | 医師の不法行為責任を問うためには、医療行為上、医師の過失と患者の生命・身体に及ぼした損害の間に因果関係の存在が必要であり、仮に両者の間に相当な因果関係が認められない場合には通常的な意味での損害賠償を請求できない。本論文はこのような通常的な不法行為法上の限界を乗り越え、損害との因果関係のない医師の不適切な医療行為自体だけで患者の慰謝料拝承を認めうる理論的根拠を体系化するため、韓国より多様な争点を検討してきた日本最高裁判所の最近の判例──最高裁平成17（受）715号、2005年12月8日判決、最高裁平成21（受）65号2011年2月25日判決──を中心に触れてみた上で、それが示唆するものを論究した。より具体的に言及すると、「患者がその死亡の時点においてなお生存していた相当程度の可能性」又は「患者に重大な後遺症が残らなかった相当程度の可能性」という存在を証明する必要があるかどうか、また「適切な医療を受ける利益」を法が独立した利益として認めるか否か、さらに、医療行為が「著しく不適切な」場合において医師の責任はいかなるものか等について触れている。 | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | |||
ART001670090 | oai_dc | 2011년 주요 의료 판결 분석 | Review of 2011 Major Medical Decisions | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"유현정(법무법인 명율); 서영현(법률사무소 히포크라); 이정선(법률사무소 건우); 이동필(법무법인 로엠)"
] | According to the review and analysis of medical cases that are assigned to the Supreme Court and all local High Court in 2011 and that are presented in the media, it was found that the following categories were taken seriously, medical and pharmaceutical product liability, the third principle of trust between medical institutions, negligence and causation estimation, responsibility limit, the meaning of medical records and related judgment of disturbed substantiation, Oriental doctors’ duties to explain the procedures, IMS events, whether one can claim for each medical care operated by non-physician health care institutions to the nonmedical domain in the National Health Insurance Corporation, and the basis of norms for each claim.
In the cases related to medical pharmaceutical product liability, Supreme Court alleviated burden of proof for accidents with medical and pharmaceutical products prior to the practice of Product Liability Law and onset the point of negative prescription as the time of damage strikes to condition feasibility of the specific situation. In the cases related to the 3rd principle of trust between medical institutions, the Supreme Court refused to sentence the doctor who has trusted the judgment of the same third-party doctors the violations of the care duty.
With respect to proof of a causal relationship and damages in a medical negligence case, the Supreme Court decided that it is unjust to deny negligence by the materials of causal relationship rejecting the original verdict and clarified that the causal relationship shall not deny the reasons to limit doctors’ responsibilities.
In order not put burden on patients with disadvantages in which medical records and the description of the practice or the most fundamental and important evidence to prove negligence and causation are being neglected, the Supreme Court admitted in the hospital’s responsibility for the case of the neonate death of suffocation without properly listed fetal heart rate and uterine contraction monitor. On the other hand, the Seoul Western District Court has admitted alimony for altering and forging medical records.
With respect to doctors’ obligations to description, the Supreme Court decided that it is necessary to explain the foreseen risks by the combination of oriental and western medicines emphasizing the right of patient’s self-determination. However, questions have arisen whether it is realistically feasible or not.
In a case of an unlicensed doctor performing intramuscular stimulation treatment (IMS), the Supreme Court put off its decision if it was an unlicensed medical practice as to put limitation of eastern and western medical practices, but it declared that IMS practice was an acupuncture treatment therefore the plaintiff’s conduct being an illegal act. In the future, clear judgment on this matter should be made.
With respect to the claim of bills from non-physical health care institutions, the Supreme Court decided to void it for the implementation of the arrangement is contrary to the commitments made in the medical law and therefore, it is invalid to claim. In addition, contrast to the private healthcare professionals, who are subject to redemption according to the National Healthcare Insurance Law, the Seoul High Court explicitly confirmed that the non-professionals who receive the tort operating profit must return the unjust enrichment and have the liability for damages.
As mentioned above, a relatively wide range of topics were discussed in medical field of 2011.In Korea’s health care environment undergoing complex changes day by day, it is expected to see more diverse and in-depth discussions striding out to the development in the field of health care. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670084 | oai_dc | 국민건강보험법 제48조 제1항 제1호 보험급여 제한 요건 ‘중과실에 의한 범죄행위로 기인한’에 대한 소고 | About Insurance Benefits Restriction Condition of National Health Insurance Act Article 48 Paragraph 1: ‘When He has Through Gross Negligence Caused a Criminal Conduct' | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정오균(법무법인 대원)"
] | National Health Insurance Act has been enforced all over the People as part of the effort to assure the minimum constitutional human worth and dignity in the aspect of the right to pursue health for preventing misfortune that comes to death without even a chance to be received treatment for illness or injury.
Meanwhile auto insurance is compulsory in certain parts in order to promote benefits of everyday life and the rapid recovery of the damage caused by traffic accident when one have negligently driven a car which has become the necessities in daily life. Any injured driver in a traffic accident can be treated by National Health Insurance without getting an auto insurance in various circumstances, but Article 3 paragraph 2 of Traffic Accident Act don't allow exception of criminal punishment when he has driven a car without license, drunken, or tresspassing the centerline, etc.
When the injury occured by his own certain negligence is judged to ‘when he has intentionally or through gross negligence caused a criminal conduct or intentionally contributed to the occurrence of an accident' of National Health Insurance Act, insurance benefits can be restricted. Such a restriction could harm the right to pursue happiness and health of People by depriving the poor, who cannot afford to pay, of chances to get treatment.
Here we will see benefit restriction by ‘gross negligence' of National Health Insurance Act Article 48 paragraph 1, which has largest portion of such restriction. It is desirable to delete ‘gross negligence' clause from above paragraph and to interpret ‘when' clause restrictively for diminishing confusion of interpreting and guaranteeing the right of health. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670087 | oai_dc | 환자의 진료협력의무와 의사의 의료과실 | A Study on Patient'S Obligation in Medical Cooperation and Doctor'S Medical Malpractice | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"백경희(인하대학교)"
] | Doctors and patients for the purpose of healing and treatment of disease through the contract will make a relationship. Doctors perform the medical practice for the state and illness of patient. Given that the patient did not cooperate in the doctor's medical practice, it is difficult to achieve the goal of disease healing.
If the patient don't cooperate the medical care, and it is linked with a doctor's medical malpractice, patient's violation of obligation in medical cooperation is considered with negligence on the part of patients. However, this negligence should be limited to obvious cases that the patient's behavior is unreasonable although the doctor provides medical information to patients and induced the patient's response. Also, patient's violation of obligation in medical cooperation must result in adjusting the indemnification via a setoff of fault except the cases having causal relationship between doctor's fault and malpractice. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670093 | oai_dc | 비급여진료비용 공개에 관한 헌법적 정당성 고찰 | Eine verfassungsrechtliche Rechtfertigungsprüfung von der Preisbekanntmachung der Individuellen Gesundheitsleistung | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정영철(연세대학교)"
] | Obwohl die Preisbekanntmachung der individuellen Gesundheitsleistung(PiG), die im Jahr 2010 im Arztrecht neu eingeführt wird, zum Management der Gesundheitskosten sehr nützig werden soll, muss eine verfassungsrechtliche Rechtfertigungsprüfung von PiG zunächst durchgeführt werden. Angesichts der staatlichen Regulierung und Lenkung auf die Wirtschaft des Art. 119 Abs. 2 KV besitzt die PiG zunächst eine Verfassungsrechtfertigung. Nach der ständigen Rechtsprechung des koreanischen Verfassungsgerichts folgt das Selbstbestimmungsrecht der Verbraucher aus der Menschenwürde von Art. 10 Abs. 1 Koreanische Verfassung(KV) und dem Recht auf Glück von Art. 10 Abs. 2 KV. Demnach können Konsumenten den Einkauf der Güter und Service, die Partei des Vertrags, Geschäftsbedingungen, usw. frei entscheiden. Indem der Preis der individuellen Gesundheitsleistung mithin bekanntgemacht wird, werden das Selbstbestimmungsrecht der Verbraucher sowie das Recht der Konsumenten sicherlich gewährleistet. Darüber hinaus steht die PiG im Einklang mit dem Recht auf Information, aber auch zählt sie nicht zu den Informationen der Nichtbekanntmachung vom Gesetz über die Bekanntmachung der Information(GBI). Nach der staatlichen Gesundheitspflicht des Art. 36 Abs. 3 KV kann die PiG eine Verfassungslegitimät besitzen. Im Hinblick auf die Berufsfreiheit kann die PiG einen Eingriff in den Geschäftsaktivitäten der Unternehmen bedeuten. Trotzdem ist die PiG als eine verfassungsrechtliche Legitimität zu qualifizieren. In der Konsequenz kann die PiG, die auf dem Selbstbestimmungsrecht, dem Recht auf Information, dem Gesundheitsrecht, der Regulierung und Lenkung auf die Wirtschaft von Art. 119 Abs. 2 KV, und dem Recht der Verbraucher beruht, als eine verfassungmäßige Politik geschätzt werden. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670086 | oai_dc | 제소 전 의료분쟁 해결에 관한 연구-한국소비자원 의료분쟁 조정을 중심으로- | A Study on Alternative Medical Disput Resolution -With a Focus on Medical Dispute Mediation of Kca- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김경례(한국소비자원)"
] | Just in case a patient's state couldn't get better or get even worse after medical practices, it is difficult for the patient's side to accept the result and it tends to think that its damage is caused by his doctor's malpractice. Medical practices of a doctor require highly advanced attention duty as a medical expert, because they are targeted at a human body of the best benefit and protection of the law. However, it is hard to prove the malpractice on the patient's side in medical dispute.
Therefore, to solve a medical dispute quickly and fairly before the medical suit Korea Consumer Agency (KCA) has done a medical dispute adjustment business since 1999.
For the past 5 years (2006~2010), the medical team of KCA had managed 4,171 cases as an injury relief, but it had dealt with them focusing on an injury relief business only after the occurrence of a medical accident. Afterwards, it is necessary to expand the range of its services in purpose of preventing the injury of consumers.
If we can solve the problems -the clear statements about the cease of extinctive prescription in the fundamentals of comsumer act, the presence of parties directly concerned at comsumer dispute adjustment committee, and the effect of an agreement, etc. -, which have been founded in medical injury relief service of KCA and the management and procedures of the comsumer dispute adjustment committee of KCA and if we can also give KCA more workers and the proper budget of the government, we can expect KCA to become a more useful agency. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670089 | oai_dc | 감염병의 대유행에 있어서 의약품 부족 시 의약품 제공기준에 관한 헌법적 정당성 | Verfassungsrechtliche Rechtfertigung für Die Kriterien bei Verteilung Knapper Medizinischer Güter in Pandemie | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정문식(한양대학교)"
] | Nach der sog. Neue Influenza(Schweinegrippe)-Pandemie wird die Verhütung und Bekämpfung von Infektionskrankheiten eine essentielle Aufgabe für das Gemeinwesen und stellt eine komplexe Herausforderung für die Rechtsordnung dar. Die nächste Pandemie ist nicht mehr eine Frage der Ob, sondern lediglich der Zeit.
Zwar ist der jetzige Influenza-Pandemie Plan und der koreanische Infektionsschutzgesetz (ISchG) nicht verfassungswidrig, weil mit ihnen die Untergrenzen des Gestaltungspielraums von Gesetzgeber nicht unterschreitet und damit die grundrechtliche Schutzpflicht von Staat nicht verletzt ist. Jedoch ist aber gesetzlicher Ergänzung bedürftig, denn es gibt keine konkrete Regelungen, die in einer Verknappungssituation von medizinischen Gütern bei Pandemien anwendbar sind. Würde die Knappheit von Impfstoff nicht vermeiden, dann dürfte darüber entschieden werden, wem die Ressourcen in der Verwendungskonkurrenzen bevorzugt zugeteilt werden sollen.
In Knappheitssituationen ist zuerst die Frage der Verteilung medizinischer Gütern von so wesentlicher Bedeutung, dass sie von Verfassungs wegen durch das Parlament zu regeln ist. Zweitens kann die Verteilung knapper medizinischer Ressourcen auf Maximierung der Überlebendenzahl als Menschenwürdegrundsatz und Lebensschutzpflichten vom Staat gerichtet sein. Drittens dürfen die in Art.11 KVerf genannte Kriteien, wie Geschlecht oder Religion, weil sie als Ungleichbehandlungskriterium im koreanischen Verfassungstext verboten sind, nicht zur Verteilung und Zuteilung herangezogen werden. Nicht zuletzt darf und muss der Gesetzgeber darüber regeln, wer in welchem Verfahren behandelt bzw. geschützt werden soll. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670091 | oai_dc | 응급환자의 전원과 의사의 설명의무 | Interhospital Transfer of Emergency Patients and Informed Consent | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"배현아(이화여자대학교)"
] | Inter-hospital transfer, depending on its medical and legal appropriateness, affect the prognosis of patients and can even lead to legal disputes.
As Emergency Medical Service Act, any physician shall, in case where deemed that pertinent medical service is unavailable for such patient with the capacities of the relevant medical institution, transfer without delay such patient to another medical institution where a pertinent medical service is available.
For medico-legally appropriate inter-hospital transfer, the head of a medical institution shall, in case where he transfers an emergency patient provide medical instruments and manpower required for a safe transfer of the emergency patient, and furnish the medical records necessary for a medical examination at the medical institution in receipt of such patient. And transfer process must comply with the requirements prescribed by executive rule such as attachment of the referral, provision of ambulance, fellow riders and informed consent of transfer.
Those engaged in emergency medical service shall explain an emergency medical service to an emergency patient and secure his consent.
In addition to the duty to inform about emergency medical service to the patient and his or her legally representative, there is also a duty for doctors to sufficiently explain to the patient and his or her legally representative during inter-hospital transfer that the need for the transfer, the medical conditions of the patient to be transferred and emergency treatment that will be provided by the hospital from which the patient is going to transferred. Likewise, the hospital to which the patient is transferred must be thoroughly informed about matters such as the patient's conditions, the treatment the patient was given and reasons for transfer by transferring doctors. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670092 | oai_dc | 의료분쟁조정법상 의료사고보상사업의 헌법적 쟁점 | A Constitutional Review on Compensation for Medical Malpractice during Delivery | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"전광석(연세대학교)"
] | A medical malpractice case requires special legal protection, considering its characteristics, such as seriousness and long term effects of its damages, medical information asymmetry between practitioners and patients, and difficulties in realization of liability. Taking the points above into consideration, Medical Malpractice Arbitration Act of 2012(MAA) has legislative intent to protect the rights of the injured from medical malpractice, while protecting the stability of medical practice by providing arbitration as an alternative dispute resolution. However, constitutional review is required for one new scheme of compensation for medical injuries during delivery, which is implemented in MAA of 2012, especially with regard to freedom to exercise occupation, property, equality under the Constitution. Two important aspects are 1. according to the law, absolute liability applies to compensation for damages during delivery without negligence of practitioners; and 2. the practitioner bears some portion of the cost, 30% in the law above. This article aims to analyze this new institution in various aspects of the Constitution, and, as a result, it does not comply with constitutional criteria. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670088 | oai_dc | 성년후견과 의료-개정 민법 제947조의 2를 중심으로- | The Adult Guardianship and Medical Issue According to the Amendments of Civil Code | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박호균(법률사무소 히포크라)"
] | The adult guardianship system has been introduced through amendments of Korean Civil Code for the first time in the March 2011(Act No. 10429, 7. 1. 2013. enforcement). The adult guardianship system has the main purposes to provide a lot of help vulnerable adults and elderly, and protect them on the welfare related with property act, treatment, care, etc.
There could be a controversy about whether the protection Legal Guardian's consent(formerly known as the Mental Health Act) or permission of the Family Court(revised Civil Code) are required to, or the Mental Health Act should be revised, when mental patient will be hospitalized forcibly. The author proposes that mental patient with Adult guardians should be determined by Legal Guardian's consent and approval of the Family Court, but mental patient without Adult guardians could be determined by Legal Guardian's consent.
The issue of Withdrawing of life-sustaining treatment could be occurred due to the aging society and the development of modern medicine, and this has provided difficult, various problems to mankind in Legal, ethical, and social welfare aspects. The need of Death with dignity law or Natural death law has been reduced for a revision of the Civil Code. Therefore, on the issue of Withdrawing of life-sustaining treatment, in the future, intervention of the court is necessary in accordance with the revised Civil Code Section, and Organ Transplantation Act and the brain death criteria may serve as an important criterion. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001670085 | oai_dc | 요양급여의 허위․부정청구-사례연구 중심으로- | Nursing Care Fraud and False Billing -With the Case Study Basis- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"허수진(서울중앙지방검찰청)"
] | First introduced in 1977, Korean health care system reached to national coverage in short period of time never seen before in any other countries, and rated as successful system protecting the health of the public at relatively low price.
However, despite those positive evaluations, some of fraudulent medical organizations or pharmacies are hindering the sound development of the national health care system with meticulous false billing exaggerating the number of patients or the days of their treatment.
To prevent aforementioned nursing home fraud and false billing, the misconduct should be punished as subject to the criminal law and severally punished for fines and payments which far exceed the expected amount of illicit gains as it is basically violation of criminal fraud, other than the forced return of illicit gains based on civil laws. Furthermore, the Health Insurance Review and Assessment Service should strengthen and complement the fraud investigators, the review process, and the professional training to raise the detection rates. It might also want to review ways to implement whistleblower rewarding system and rewards for evidences of healthcare fraud to overcome the limits of external review. | 법학 | null | http://dx.doi.org/ | kci_detailed_000159.xml | ||
ART001561513 | oai_dc | 석면의 위해성과 국민건강권 확보를 위한 비교법적 검토 | Harmfulness in asbestos and review from comparison method for securing national health right | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정정일(경기대학교)"
] | Asbestos has been used for roofing, walling and the like for the constructions since 60’s~70’s owing to its excellent fire resistance and heat insulative nature. However, it has banned to be used in major countries all over the world since WHO-affiliated International Agency for Research on Cancer (IARC) stipulated asbestos by a top carcinogen causing lung cancer, malignant mesothelioma and so on in 1986. Therefore, we had prohibited the use of asbestos on brakes for automobile since 2007 and on most of the products other than some cases of having no alternatives such as munitions from 2009. Nevertheless, diseases from asbestos have a long incubation period of 10~40 years, therefore, even if being exposed to asbestos, preliminary prevention is rather more important than instant possible damage as damages can be greater decades later. Accordingly, this thesis has a purpose to seek a plan in order to guarantee the rights of national health from harmfulness of asbestos by comparing and reviewing the policies on asbestos in advanced countries such as France, Japan, Netherlands and such like.
| 법학 | null | kci_detailed_000159.xml | |||
ART001561560 | oai_dc | 의약품 임상시험의 계약적 일고찰 | A Contractual Study on the Clinical Trial of Medicine | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"송영민(원광대학교)"
] | This thesis has studied about the legal characteristic of injection of the trial drug, the position of the pharmaceutical firm as a contractor of the clinical trial, the possibility of compulsory performance of consistent injection of the trial drug, and the damage claim caused in the process of the clinical trial from the viewpoint of protecting the trial subject in the clinical trial.
According to court's judgement in the United States, the lawsuit of the trial subject, although the trial subject had expected consistent injections, was dismissed because there was no direct contract between pharmaceutical and trial subject. However, Helsinki Declaration prescribe the medical research as follows. 'All patients who participated in the research should be able to use the best precaution, diagnosis, and treatment proved by the final outcome of the research'.
The trial subject is entitled to demand only the pharmaceutical firm which developed and provided the trial drug, and the pharmaceutical firm has the obligation to supply the trial drug to the trial subject. Therefore, it would be not enough to protect the trial subject if the pharmaceutical firm which makes the trial drug is ruled out. In addition, especially, in case the trial drug has a constant effect with the aim of treatment, if the injection of the trial drug is suddenly stopped, the trial subject would not have the benefit of treatment by the trial drug. In this case, the best remedy against the damage is to urge a constant injection of the trial drug.
Thus, in certain case, it is reasonable to consider that the pharmaceutical firm has the obligation to supply the trial drug to the trial subject constantly, and it is also necessary to compel it through effective means in case the pharmaceutical firm do not fulfill its obligation to supply the trial drug. However, as an essential prerequisite for the assertion mentioned above, it should be judged under the principle of good faith considering the concrete situation, that is, what roles the pharmaceutical firm has played.
| 법학 | null | kci_detailed_000159.xml | |||
ART001561502 | oai_dc | 의료법 제27조 제3항 환자 ‘유인’ 금지의 적용범위 | Anwendungsbereich der Verleitung des Patienten im Sinne des §27 Abs. 3 das Gesuntheitsdienstgesetz | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이석배(단국대학교)"
] | §27 Abs. 3 das Gesuntheitsdienstgesetz (the Medical Service Act) in Korea lautet: Niemand in der Absicht, sich oder einem Dritten einen Vermögensvorteil zu verschaffen, der Medizininstitut bzw. dem Mediziner (die Medizinerin) den Patienten vorstellen, übweweisen, verleiten oder einen anderen zu dieser Handlung anstiften darf, wie z.B. die Selbstbeteiligung des Patienten nach dem Krankenkassengesetz (the National Health Insurance Act) oder dem Gesetz über Beistand der ärztlicher Betreuung (the Medical Care Assistance Act) skontieren oder befreien, Geld offerieren oder dem Allgemeinheit das Verkehrswesen anbieten usw.
Nach dem Wortlaut ist jedoch unklar, ob unter diese Vorschriften der Fall subsumiert werden kann, wenn eine Medizininstitut bzw. ein(e) Mediziner(in) in der Absicht, sich einen Vermögensvorteil zu verschaffen, sich den Patienten verleitet.
Nach dem Korean Supreme Court ist eine Medizininstitut bzw. ein(e) Mediziner(in) nur dann das Subjekt der Verleitungshandlung, wenn sie bzw. er ein Mittel gegen fairen oder ordungsmäßien Medizinmarkt verwendet oder dem Patienten eine ärztlich rechtswidrige Behandlung (z.B. einen rechtswidrigen Schwangerschaftsabbruch) verspricht.
In diesem Beitrag wird dagegen die Auffassung mittels der teleologischen Reduktion vertritt und argumentiert, dass ein ärztlich rechtswidriges Behandlung nach dem Rechtsgut und dem Normzweck unter §27 Abs. 3 das Gesuntheitsdienstgesetz nicht subsumiert werden, sondern allein nach eigenem Unrecht bestraft werden kann. | 법학 | null | kci_detailed_000159.xml | |||
ART001561540 | oai_dc | 미국 담배소송의 변천과 보건법정책 효과 | The Development of Tobacco Litigation in USA and it's Impact of Law and Politics in Public Health | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김운묵(건강보험심사평가원); 김지현(고려대학교)"
] | Since mid-1960s the reports from the Surgeon General, the World Health Organization, and other health experts state that there is no risk-free level exposure to smoking and secondhand smoke. Tobacco smoke is made up of more than 7,000 chemicals. Hundreds are toxic, and at least 70 are carcinogens. The chemicals in tobacco smoke reach smoker's lungs quickly every time smoker inhale causing damages immediately. Inhaling even the smallest amount of tobacco smoke can also damage smoker's DNA, which can lead to cancers. Smoking is responsible for more than 87% of lung cancers, but there are a host of other chronic diseases directly related to exposure to tobacco smoke. It's also a major cause of heart disease, stroke, aortic aneurysm, peripheral arterial disease and most of the other diseases. In the United States, each year with more than from 440,000 to 520,000 deaths caused by smoking and exposure to involuntary smoke. They conclude that smoking is the single most important source of preventable morbidity and mortality.
The United States of America have about 60-year history of tobacco litigation. Tobacco litigation has been an important tool in tobacco control strategies aimed at limiting the activities of tobacco companies and providing redress to people who have become ill as a result of their use of tobacco products.
Tobacco litigation is a kind of tort litigation. Quite often, as in the asbestos and other mass tort litigation episodes, tobacco litigation can play an educational role, warning the public about the magnitude of health risks that might otherwise be less clearly perceived. Tobacco litigation allows smokers, their families or other victims of smoking to sue tobacco companies in order to be compensated for the harm they have suffered. Potential benefits of tobacco litigation include compensation for smoking-related damages, strengthening regulatory activity, publicity, documents disclosure and changing tobacco industry behavior. And also tobacco litigation can limit the political activities of tobacco industry, protect human rights of smokers and non-smokers, increase burden to tobacco price-up and enhance the effects of law and politics in public health. | 법학 | null | kci_detailed_000159.xml | |||
ART001561521 | oai_dc | 「생명윤리 및 안전에 관한 법률」 전부개정안의 내용과 의의:임상연구와의 관계를 중심으로 | A study on the proposed amendment bill of Bioethics and Safety Law(2010): focusing on the meaning of significant contents related to the clinical research | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김은애(이화여자대학교)"
] | To strengthen the protection of human research subjects and human materials, the Korean Ministry of Health and welfare proposed the amendment bill of Bioethics and Safety Law(2010) to the Congress. It includes so many meaningful clauses. According to the bill, the scope that this act shall apply will be expended to the research involving human subjects and human materials. In the bill, there are the principles of this act; the protection of the life, health, and dignity of the human subjects, the obtaining of the adequate informed consent, the protection of the human subject’s information confidentiality and the human subject’s privacy, the assessment and minimizing of the risks involved and the guarantee of the safety for the human subjects, the preparation of the special protection program for the vulnerable human subjects, and so on. According to the bill, Institutional Bioethics Review Board(the same as Institutional Review Board) will be responsible for the auditing and monitoring on the research that was approved by IBRB, conducting the education program for the researchers, IBRB members and administrative staffs, preparing of the special protection program for the vulnerable human subjects, and forming the guidelines for the researchers as well as the review of the research protocols. And the State and local governments shall take necessary measures to support the expending of the social infrastructure. In addition to, IBRB will have to be assessed and to be gained the accreditation by the Korean Ministry of Health and welfare.
So, if Bioethics and Safety Law is amended, it will contribute enormously to enhance the level of the human research subjects protection. Also, if this Law is amended, IBRB will play a major role for the conduct of the ethically, scientifically, and legally proper research. But now, as a matter of fact, the capability of IBRB members and IBRB office members is not enough to charge of this role because some people and some organizations does not know the importance of IBRB exactly. In spite of, IBRB shall be able to this role to protect the human subjects and to develop the level of the research On the international level. Therefore, the State, local governments and the Organization shall back up the administrative and financial terms of the IRB and IRB Office. | 법학 | null | kci_detailed_000159.xml | |||
ART001561556 | oai_dc | 배아연구와 불법행위책임 | Human Embryo Research and Tort Liability | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"서종희(연세대학교)"
] | Recently, many nations said “yes” to human embryonic stem cell research, signing an executive order to permit funding for the research in the mame of achieving health and life of humankind. Human Embryo Research is permitted by our Bioethics & Biosafety Act. But, illegal research cannot be divorced from civil liability since it requires the destruction of eggs of fertilized eggs and personal rights of embryo-creator. After all, though we allow to do research embryo, we should control the capacity of abuse of embryo research for embryo-creator. If research violate the law(Bioethics & Biosafety Act or Civil Law, etc), it comes to a delict by pecuniary loss and non-pecuniary loss. When it comes to pecuniary loss, Human Embryo is not body but special property. Supreme Court maintained a stance that mental suffering is generally deemed as compensable for damages for the loss of property where a person's property right is invaded by a tort or non-performance of obligation. Thus, where mental suffering occurs, which cannot be compensated by recovery of property losses, the situation must be a special circumstance and the injured could claim consolation money for such losses only if the offender knew or would have known of such special circumstances(Supreme Court Decision 96Da31574 delivered on Nov, 26, 1996, etc.). That is to say, Supreme Court regards mental suffering through person's property right invaded by a tort as damages that have arisen through special circumstances. According to Civil law article 393 (2), the injured could claim consolation money for such losses only if only if the offender had foreseen or could have foreseen such circumstances. Also our court will solve through damages for non-pecuniary loss by complementary function of consolation money in that pecuniary loss could be difficult to valuate.
| 법학 | null | kci_detailed_000159.xml | |||
ART001561549 | oai_dc | 2010년 주요 의료 판결 분석 | Review of 2010 Major Medical Decisions | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이정선(법률사무소 건우); 서영현(법률사무소 히포크라); 유현정(종합법률사무소 서로)"
] | Verdicts related to major medical litigation given by the Seoul Central District Court, the Seoul High Court and the Supreme Court in 2010 were analyzed. It’s shown that in cases of the medical negligence regarding the occurrence of neonatal cerebral palsy, the plaintiff claims were dismissed using criteria proposed by associations of Obstetrics and Gynecology and Pediatrics in US, and thereof the burden of plaintiffs to prove the medical negligence has increased.
In addition, in case of that the expected survival period of infants gets longer, payments for treatment and nursing after survival period determined by judges are made and it was judged to compensate it as a periodical indemnity.
In case for the explanation obligation the most frequently mentioned in the medical litigation, in addition to cases of invoking the existing theory of explanation obligation, verdicts to mention the instructions of theory regarding instruction explanation obligation and the possibility of compensation for damages on property are given. Particularly, in cases for a liability of reparation by exaggerating the effects and not disclosing the risks related to treatment with stem cells, even if the treatment not approved by Food and Drug Administration is in violation of the Pharmaceutical Affairs Law, it’s not illegal as violation in Pharmaceutical Affairs Law itself. But there is a certain verdict to present the possibility of an extension of the theory of explanation obligation by acknowledging the liability of reparation caused by illegal acts with no explanations of effects and risks of treatment with stem cell by doctors and pharmaceutical companies.
In an incident in which a mental patient fell and died through the opened door of the roof at the hospital, a liability of reparation was acknowledged due to defects in structure installation management and this verdict drew an attention since the overall management responsibility about patients including structures was acknowledged to the hospital besides the obligations on medical practice.
In case of the verdict without giving the opportunity to state the opinion with respect to the main legal issues, the responsibility of the court was emphasized since the court did not fulfill the explanation obligations. There were some cases in which payments for nursing and caring to a patient in vegetative state during the plastic surgery was admitted. However, in dental-related incidents, the proportion of cases in which plaintiff won was low since the difficulty of proving may be reflected.
In the area of administrative litigation, unlike the existing position regarding arbitrary medical charge cover collected from patients in hospital, the verdict to admit the legitimacy of collection of medical treatment was given and attracted the attention of people. Verdict in which the expression related to medical advertisement was not exaggerated disposed the original verdict and pointed out the problem of excessive regulations on medical advertisement.
The effort to analyze the trend of verdicts of court through reviewing the decisions and to organize should be continued, but the full decision should be disclosed as a base, and people and systems to enable the all time monitoring should be prepared. | 법학 | null | kci_detailed_000159.xml | |||
ART001561507 | oai_dc | LMO에 대한 손해배상책임-바이오신약을 중심으로 | A study of Liability for LMO and Biomedicine | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"문상혁(성균관대학교)"
] | Humankind history is faced with one gigantic turning point due to development of Living genetically Modified Organisms. Food production by means of LMO is on the acceleration in an effort to solve the shortage of food problems. Food is also used as alternative energy source. Use of LMO product is not only limited to food and energy, but is actively utilized in various fields of medicines.
This paper is first to check out the state of biomedicine developed and associated problems from industries that use LMO, after which we made an attempt on legislative approach to find out means of relief, through examples of such laws legislated for the sufferer from the adverse effect of the biomedicine. As for the liable subject to bear the responsibility for compensatory damage in a way of relieving the victim owing to adverse effect of biomedicine, those who manufactured and sold biomedicine and who are related to the damage to the victim due to the accident and medical doctors and pharmacists who prescribe and administer the medicine in question have been looked into.
Accidents involving medicines and medical supplies could take place without reason for imputation on part of the liable subjects or fault of the victim, in which case the victim can’t receive damage compensation from any of both parties. When such accidents happened turn out to be no fault accidents, introduction of damage relief measures might have to be reviewed against side effects of medicine and medical supplies as no fault compensation in order for actual relief to be possible.
Talking about technicality of legislation, we can suggest a method of strengthening the accountability of manufacturer for stereotypical agenda on biomedicines by newly legislating special regulation with an issue that resists claim on risks associated with the development of medicine and incorporating the same into Manufactured Product Liability Law.
After all, when an accident happens associated with biomedicine, the damage will be done to the consumer. And the consumer will be exposed to fatal danger even without the time to cope with potential risks associated with medicine and medical supplies they take. Therefore, it is necessary to protect the potential victim by having the manufacturer of biomedicines bear the liability of medical risks. | 법학 | null | kci_detailed_000159.xml | |||
ART001610506 | oai_dc | 의료분쟁조정법상 손해배상금 대불제도의 문제점과 개선방안 | The Problems and Alternatives of The Subrogation Payment System for Damage | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이백휴(대한의사협회)"
] | On March 11, 2011, the Korea National Assembly finally passed the bill on the Damage Relief on the Medical Malpractice and Mediation for Medical Dispute. One of the features of this Act is including “The Subrogation Payment System for Damage (abbreviated SPSD)”. This System is that 'Korean Medical Dispute Mediation- Arbitration Board' pays the damages, instead of the health care provider, for the patient who isn't paid damages by the health care provider despite of the Mediation or ruling.
The purpose of this study is to search the problems and make improvement on SPSD. This System was introduced extreamly to the patients in order to induce them to the mediation. However,there remains several problems. In this articles, I have examined thoroughly the legal issues on SPSD. There are legal issues about the methods and ratio of the financial burden. In this connection, wide discretionary authority has been granted to administrative agencies specifically. On this account, this System clearly contains elements of a violation against the Constitutional Law. Moreover, this System can be broadly applied to the case of court ruling or the Korea Consumer Agency's mediation. But these measures go against the aim of legislation that the medical dispute can be resolved through the mediation or arbitration by this Act. In the end, these problems must be revised through the additional discussion. | 법학 | null | kci_detailed_000159.xml | |||
ART001610507 | oai_dc | 「국민건강보험법」 상 과징금부과처분 권한에 대한 소멸시효 적용여부 및 과징금 연대 납부 의무 유무 | A Study of Whether Extinctive Prescription and Joint Payment Apply to the Right of Imposing Fine on the Law of National Health Insurance or Not | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박태신(전북대학교 법학연구원)"
] | According to the current law of national health insurance, the Minister of Health and Welfare can impose a suspension of business or license, and a fine with medical institutions who violate the law. In case that medical institutions raise an action for nullity with each penalty, they ask for replacing the suspension of business with a fine during the pendency of the action. But there is a long gap of time between an offense and administrative measures.
One violation cause several types of administrative measures (suspension of business or fine, suspension of license etc.) and different government departments impose these penalties. It takes a lot of time to organize their opinions and they are liable to impose penalties after considerable space of time because of overwhelming tasks. Then the medical institutions can sustain a loss by getting unexpected administrative measures after their offense against the law. Thus, this article review whether extinctive prescription apply to the right of imposing fine on the law of national health insurance or not.
Meanwhile, we have no regulations imposing a same fine to co-representatives of medical institution who infringe the law of national health insurance. On this point, this study review whether they have equal duty on that or not. | 법학 | null | kci_detailed_000159.xml | |||
ART001610509 | oai_dc | 영국의 일반의약품(Over-the-counter drugs) 관리법의 의료정책적 함의 | The NHS Over-the-Counter Drugs Policy in UK: Its Experiences and Implications | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"한동운(한양대학교)"
] | Changes in a drug’s availability from prescription only to over-the-counter (OTC) status is of concern to physicians from both public health and individual patient perspectives. Government has generally been supportive of changes in medications from prescription(Rx) to over-the-counter (OTC) status in Korea, however, recognizing that there are both benefits and risks to any health care intervention, health care professionals are conservative in implementing changes to either the process or structure of health care. Changes in status of a drug from Rx to OTC can represent a change in both structure and process. Cost and convenience seem to be major factors in determining whether, given the choice, patients purchase a medicine over the counter or obtain it on prescription. With current arrangements, exemption from prescription charges provides an incentive to continue to obtain products on NHS prescription even when they are available over the counter. There is therefore no simple relation between the availability of over the counter medicines and the level of prescribing of deregulated products. The appropriate use of over the counter medicines—particularly those that have only recently been deregulated—places a burden of care on community pharmacists and calls for closer working relationships with general practitioners. In particular, systems for referral and for recording details of both prescribed and over the counter medicines need to be developed, and a direct route needs to be established for community pharmacists to report adverse drug reactions to over the counter products.
Reclassification of prescription medicines—by making them available through pharmacies without a prescription—provides the opportunity for consumers to purchase a wider range of medicinal products without making a demand on NHS resources. There is, however, no simple relation between availability of over the counter medicines and demand for NHS prescriptions. In the late 1980s the UK government fuelled the over the counter market by making it easier to reclassify certain medicines from prescription only status to allow over the counter sale in pharmacies. To explore the influence of deregulation of medicines on NHS prescribing, this article presents analyses of consumer behaviour in using medicines and prescribers' attitudes to over the counter medication and collates findings from research. Policy makers should be aware that patients’ expectations in relation to OTC medicines may be in conflict with evidence-based practice. | 법학 | null | kci_detailed_000159.xml | |||
ART001610511 | oai_dc | 국민건강증진을 위한 담배사업 규제정책의 동향과 타당성 검토 -미국, ‘가족 흡연 예방 및 담배규제 법’(Family Smoking Prevention and Tobacco Control Act)을 중심으로- | A Study on Trends and Validities of Regulation Policy of the Tobacco Industry for the National Health Promotion-Focusing on U.S. Family Smoking Prevention And Tobacco Control Act- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"최호영(한양대학교); 송기민(한양대학교)"
] | The World Health Organization (WHO) tries to accomplish the goal of 'smoke free society', and developed countries regard the nicotine as an addictive drug. In order to better protect human health, all parties are required to adopt and implement effective legislative, executive, administrative or other measures for tobacco control in accordance with Article 4 the Framework Convention on Tobacco Control (FCTC).
In order to achieve the objective of the FCTC and its protocols and to implement its provisions, Korea need to take an attention on the U.S. Family Smoking Prevention And Tobacco Control Act of 2009 and Final Rule. It is need to integrate and centralize of tobacco safety administration and smoking prevention for the national health promotion. | 법학 | null | kci_detailed_000159.xml | |||
ART001610500 | oai_dc | 혈액제제 제조물책임 소송과 증명책임 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"전병남(백인합동법률사무소)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001610508 | oai_dc | 원치 않은 임신에 대한 아이의 부양비 | The Cost of Child Rearing for Wrongful Conception | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"봉영준(한양대학교)"
] | “Wrongful conception” is a medical malpractice claim in which the plaintiff is the parent of a normal, healthy infant whose conception was unplanned and unwanted.
Medical malpractice in wrongful conception can be the result of a failure to provide informed consent to a patient, failure to properly perform a surgery, or a physician's negligent handling of a patient's problems. In the concrete, wrongful conception cases fall into two categories; those involving pre-conception negligence, such as a failed contraceptive, sterilization or failing of the controlling of embryo-number on the IVF, and those involving post-conception negligence, such as a failure to diagnose a pregnancy or to perform an abortion procedure. In addition, Medical malpractice can be the result of a failure to provide informed consent to a patient.
When bad results occur by medical malpractice or failure to provide informed consent to a patient, the range of recovery of damages is decided by a traditional civil liability law. However the calculation of damages for wrongful conception is not easy because the high value of life is included in that case. So many courts opinions in foreign country and Seoul High Court decision in 1996 allow damages for the pregnancy, birthing process and sterilization costs, but refuses to allow damages for child rearing expenses.
As to the range of recovery of damages for wrongful conception, one approach says that to allow damages in a suit such as this would mean that the physician would have to pay for the fun, joy and affection which plaintiff will have in the rearing and educating of the plaintiff's baby. To allow such damages would be against the dignity of the baby based on article 10 of the Constitution. However another approach says that damages are recoverable for all expenses related to child birth as well as for child rearing costs. Because the damages that the parents should bear a burden to the tort damage done is not a baby itself but child rearing costs. In other words, although the baby is healthy or not, economic burden of the parents can not be disregard. And denial of compensation for costs of child rearing may invalidate the role of liability law, grant the physician with a exemption certificate of liability. As a result, the medical field of procreation can be easily isolated from a liability of reparation. Therefore, on the liability law like the other medical malpractice action, parents who became pregnant or gave a birth by physician, wrongfully performed sterilization operation, etc. should be compensated for all damages relevant to unplanned and unwanted conception or birth as well as costs of child rearing. | 법학 | null | kci_detailed_000159.xml | |||
ART001610487 | oai_dc | 분만 의료사고에 대한 보상사업 - 의료사고 피해구제 및 분쟁조정 등에 관한 법률 제46조에 관하여- | Eine kritische Betrachtung über das Kompensations- Zusicherungsgeschäft und die Typenanalyse für die medizinische Geburtsbehandlungsfehler | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"백경희(인하대학교); 안법영(고려대학교)"
] | In dieser Arbeit ist zum ersten allgemeiner Überblick auf die Verschuldensprinzip, das grundsätzlich für die Unfalls-Haftung im Bereich der medizinischen Behandlungsfehler noch immerhin gelten, in aller Kürze angeführt und zugleich in rechtsvergleichender Weise auf die sozialrechtliche Typenentwicklung in Bezug auf die haftungsrechtlich motivierte Entschädigung. Gemäß dem § 46 Gesetzes zur Abhilfe für medizinische Beschädigungenund auf die Mediation-Schlichtung für medizinische Streitigkeiten ist die rechtssystematische Bedeutung des Kompensations- Zusicherungsgeschäfts als eine Art institutioneller Fremdversorgung zu erfassen.
Demzufolge geht es hauptsächlich um die Problematik von tatbeständlichen Merkmalen der Kompensation im § 46 obigen Gesetzes(unten 1) und im Bezug auf die im voraus von GF-Ministerium bekanntgegebene AO (provisorische Fassung) von 8. 11. 2011. um die Analyse einer Reihe von KHG-Entscheidungen über ärztliche Geburtsbehandlungsfehler (unten 2). Dabei ist noch die Geltungsbereich mit entsprechendem Kompensationssystem in Japan zu vergleichen (unten 3).
1. Der terminologische Sinn von “höhere Gewalt” ist sowohl semantisch wie auch juristisch-rechtstechnisch eine negative Vorausaussetzung für haftbar machende Gefährdungstatbestand. Nicht nur im Inhalt und Umfang verträgt dieser Rechtsbegriff sich nicht mit dem anderen tatbeständlich parallell zu erfüllenden Merkmal, also “die Beschädigung aus unverschuldeter ärztlicher Geburtsvorsorge”, weil die jene enger als die diese auf dem Begriffsfeld ist, sondern auch im dogmengeschichtlichen, auch doch rechtstechnichen Sinne ist die Terminologie von “höhere Gewalt” ungeeignet, für den kompensatorischen Tatbetand als ein positives Merkmal, zu sein, statt derer, m. E. sollte der Begriff von “unkontrollierbarer Zufälligkeit” als Lösungsansatz verwendet werden. Dazu ist auch die ratio legis zur institutionellen Einführung des obigen Kompensations-Zusicherungsgeschäfts, das sich auf die Entschädigung des für Patienten unerträglichen Verlustes gerichtet, d. h. gerade die Augabe des nachteilsausgleichenden Einstehens für Unglück, nicht für Unrecht, zu berücksichtigen.
2. Die Typen der KHG-Entscheidungsfällen im Bereich von Gynäkologie könnten diagnostisch bzw. therapeutisch im folgenden differenziert sein werden; je nach der Kriterien von der Weise und dem Zeitpunkt zur Geburtshilfe, technischen Behandlungsfehlern beim Geburtsvorgang, und Besorgungsfehlern nach dem Geburt u. dgl.
3. Die japanische verschuldensunabhängige Kompensation ist eigentlich eine Art institutionelle Vorsorge, die anders als koreanische Versorgungssystem auf Grund privatsicherungsfinaler Vorleistung gewärleistet wird. Der kompensatorische Bereich beschränkt sich auf die schwere infantile Zerebralparese (Cerebralparese) beim medizinischen Geburtsbehandlung.
Schließlich würde diese Arbeit erwünscht sein, zur Konkretisierung des Voraussetzungen für die Kompensation nach § 46 Abs. 1 u. 4 des obigen Gesetzes beitragen zu können, welcher spätestens am 8. 4. 2013. zur Geltung gebracht sein sollte. | 법학 | null | kci_detailed_000159.xml | |||
ART001610493 | oai_dc | 분만 의료사고에 대한 보상사업 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김연경(인천지방법원 부천지원)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001610504 | oai_dc | 이원적 의료체계에서 의사와 한의사의 과실판단 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"임해지(서울고등법원)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001720154 | oai_dc | 참여의 특권 배제에 관한 미국 독점금지법 법리와 그 시사점 | The U. S. Antitrust Law on the Exclusion of Medical Staff Privilege and its Implication | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정재훈(대전지방법원)"
] | If the medical staff privileges, which mean the eligibility to practice at open hospitals, are excluded in the United States, antitrust claims based on the violation of the Sherman Act have been raised a lot. The proliferation of these lawsuits in the United States, which are characterized as antitrust lawsuits, can be understandable situation. The reason is because doctors who don't belong to specific hospitals are seriously damaged, if the medical staff privileges are excluded and doctors cannot use facilities of open hospitals.
In order to decide to allow the privileges of certain doctors, hospitals have to rely on peer review to maintain high quality of medical services, and it is not easy to find alternative of peer review in the professional areas like healthcare. However, there are possibilities that members of the peer review can abuse power to unfairly exclude privileges of potential competitors. In this sense, it is asserted in the U.S. antitrust lawsuits that the restraint of medical staff privilege can be the illegal restraint of trade in violation of section 1 of Sherman Act and can be monopolization or an attempt to monopoly by hospitals in violation of section 2 of Sherman Act.
As Korea adopted open hospital system quite recently, there is still no case related with the exclusion of medical staff privileges. However, medical staff privilege system of Korea is not different from that of the United States in principle. Thus, the U.S. jurisprudence on the exclusion of medical staff privileges can be referred in the interpretation of "practice that interferes with or restricts the activities or contents of the business" based on Article 19.1.9 of Monopoly Regulation and Fair Trade Law of Korea. | 법학 | null | kci_detailed_000159.xml | |||
ART001610503 | oai_dc | 이원적 의료체계에서 의사와 한의사의 과실판단 | The Criteria of Medical Malpractice of Medical Doctors and Oriental Medical Doctors in Korea | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이백휴(대한의사협회)"
] | The Korea health care system has been divided into Western and Oriental (Korea traditional) medicine since 1951. In accordance with dualistic medical system, there are many conflict cases between medical doctors and oriental medical doctors.
Meanwhile, there were much discussions about the meaning and criteria of medical malpractice(negligence). Especially, many cases have been built up about the criteria of medical malpractice through lawsuits. But, comparatively, there's few the medical malpractice case of the oriental medical doctors. According to a recent ruling of the Supreme Court, the legal principles of medical doctor's malpractice case are equally applied to the criteria of the oriental medical doctor's malpractice case.
But there are much considerations in addition to these principles for the dualistic medical system and academic distinctiveness. This study is intended to review the dualistic medical system, the criterion of medical malpractice, and analysis this issues. To make long story short, under our dualistic medical system, judging the medical and oriental malpractice should be considered relatively. However, it makes sense that we want medical doctor or oriental medical doctor to demand the reinforced negligence to restrict the unnecessary discretion. If there is lack of evidence-based medicine or the rationality suspected, the health care providers must give enough proof. | 법학 | null | kci_detailed_000159.xml | |||
ART001610499 | oai_dc | 혈액제제 제조물책임 소송과 증명책임 - 대법원 2011. 9. 29. 선고 2008다16776 판결과 관련하여 | Pharmaceutical Product Liability and the Burden of Proof | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"문현호(대법원)"
] | This article analyzes the case (2008Da16776) which has the issue how patients have to prove causal relationship when patients claim against pharmaceutical companies alleging that patients were infected with virus due to contaminated blood products.
The Supreme court held that: (1) if patients prove that they didn't have symptoms suggesting virus infection before administration of blood products, the virus infection had been confirmed after administration of blood products, and there were significant potential of contamination of the blood products with the virus, the defect in blood products or the negligence of pharmaceutical company in making blood products shall be presumed to cause the infection of the victim. (2) The pharmaceutical companies could reverse the presumption by proving the blood products were not contaminated, but the fact that the victims were treated with the blood products manufactured by other companies or had received blood transfusions is not enough to reverse the presumption.
The case is the first decision whether the burden of proof about causal relationship could be reduced in pharmaceutical product liability lawsuit.
Hereafter pharmaceutical product liability cases, it would be necessary to reduce the burden of proof about causal relationship in order to make substantive equality between patients and pharmaceutical companies. | 법학 | null | kci_detailed_000159.xml | |||
ART001459478 | oai_dc | 의료기관 개인건강정보의 이차적 이용 | The Protecton of Privacy on Secondary Use of Personal Health Imformation | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김장한(울산대학교)"
] | Along with the development of digital technologies, the information obtained during the medical procedures was working as a source of valuable assets. Especially, the secondary use of personal health information gives the ordeal to privacy protection problems. In korea, the usage of personal medical information is basically regulated by the several laws in view of general and administrative Act like Medicine Act, Public institutions' personal information protection Act, Information-Network Act etc. There is no specific health information protection Act. Health information exchange program for the blood donor referral related with teratogenic drugs and contagious disease and medical treatment reporting system for income tax convenience are the two examples of recently occurred secondary use of health information in Korea. Basically the secondary use of protected health information is depend on the risk-benefit analysis. But to accomplish the minimal invasion to privacy, we need to consider collection limitation principle first. If the expected results were attained with alternative method which is less privacy invasive, we could consider the present method is unconstitutional due to the violation of proportionality rule.
| 법학 | null | kci_detailed_000159.xml | |||
ART001459448 | oai_dc | 손해배상액 산정에 관한 최근 10년간 판례의 동향(下) | The Trend of Precedents about Calculation of Damage Compensation for Last Decade | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박영호(대구고등법원)"
] | This thesis introduces the trends of korean courts' ruling on damages in medical malpractice cases for past 10 years.
First of all, Korean courts' ruling have had a tendency to pay only non-economic damages for not taking the informed consent.
If a doctor cannot get the informed consent from a patient, he compensate only non-economic damages for the infringement of self-determination rights of patient. It's enough for the plaintiff to prove the infringement of self-determination rights, if the plaintiff just want to get non-economic damages.
The Korean Supreme court have ruled that if plaintiffs want to get economic damages for the infringement of self-determination rights or informed consent, plaintiffs must prove that the infringement of self-determination rights is the proximate cause of the economic damages of patient.
There is another tendency for the Korean Supreme court to limit the damages in medical malpractice cases on the ground of patient's diseases' dangerousness or patient's idiosyncrasy.
In the past courts often limit the damages only to 70~80% of total damages, but now a days courts mostly limit the damages to 20~30%.
This thesis also introduce the Korean courts' trends about Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care. | 법학 | null | kci_detailed_000159.xml | |||
ART001459466 | oai_dc | 판례에서 나타난 무면허의료행위의 유형과 법률의 착오 | The Regulation of Unlicensed Medical Practice and Mistake of Law | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정도희(단국대학교)"
] | Under the existing law, an act included in medical practice by medical personnel seems to be irrelevant to whether the act concerned in the “Life World” is in the category of medical practice. In spite of the act having been done according to the custom for a long time, and generally done by individuals in the “Life World”, these kinds of acts have been banned by law, because if these acts were done by the general individuals, it would be considered as harmful behavior to human life and body. And it is not sure that individuals know such a ban or notification. This cause a “Mistake of Law”. Also it is happened if someone knows the existence of law but believes that his/her act is not included. For treating the problem of “Mistake of Law” of unlicensed medical act, in this study I inquired thoroughly into the category and regulation of unlicensed medical act, uncertainty of the Medical Services Law the first Section of Article 27, the prohibition of unlicensed medical act. The “Composition Condition” of the first Section of Article 27 of the Medical Services Law is not certain, it doesn't meet the “Doctrine of Clearance”, and it cause the “Mistake of Law”. Also it doesn't meet standardization of constitutional state. An exceptional decision of Pusan District Court, the debate about unlicensed medical practice, constitutional decision on unlicensed medical practice of the Constitutional Court of Republic of Korea and point of view of support of regulation. Also I examined the problem of “Mistake of Law” that the regulation of unlicensed medical practice has. I tried to solve uncertainty of “Composition Condition” and proposed a direction of regulation for solving the “Mistake of Law” and the use of existing law.
| 법학 | null | kci_detailed_000159.xml | |||
ART001459472 | oai_dc | 수평적 분업의료에 있어서 신뢰와 불신 | Vertrauen und Misstrauen in der horizontal arbeitsteiligen Medizin | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김민중(전북대학교)"
] | Viele medizinische Maßnahmen erfordern ein Zusammenwirken verschiedener Ärzte. In der arbeitsteiligen Medizin wird deutlich zwischen vertikaler und horizontaler Arbeitsteilung unterschieden. Mit dem Begriff vertikaler Arbeitsteilung geht es darum, ob ein Arzt einem anderen Weisungen erteilen kann oder nicht. Bei der Horizontalen Arbeitsteilung handelt es sich um selbständig tätige Mediziner, in gleichen oder aneinander stoßenden Gebieten, bei denen man sich auf die Angaben oder die Tätigkeiten des anderen verlassen kann. Die wirkliche arbeitsteilige Medizin wird horizontal geleistet.
In der arbeitsteiligen Medizin, insbesondere in der mehr und mehr spezialisierten Medizin, ist ein gewisser Grad des Vertrauens notwendig, schon aus Zeitgründen. Die Wiederholung aller möglichen diagnostischen, aber auch präoperativen Untersuchungen, wäre zeitaufwendig und kostenreich. Es gibt aber auch Verhältnisse, in denen die Kontrolle oder sogar die Wiederholung dieser Tests notwendig ist. Dann ist, insbesondere wenn sie in einer gewissen Zeitfolge tätig werden, die Problematik des Vertrauens und Misstrauens angesprochen.
Der Arzt, der von einem anderen Arzt in herkömmlicher Weise Mitteilungen bekommt oder jedenfalls erwarten kann, darf sich grundsätzlich auf den Vertrauensgrundsatz berufen. Das gilt insbesondere, wenn der mitteilende Arzt in einer personell und apparativ überlegen ausgestatteten Klinik tätig ist. Wenn sich allerdings Zweifel an der Richtigkeit der Mitteilung aufdrängen, etwa zahlreiche Nachlässigkeiten vorgekommen sind, ist für Vertauen kein Platz. | 법학 | null | kci_detailed_000159.xml | |||
ART001459446 | oai_dc | 소유권에 기한 유체인도청구의 허용 여부 - 대법원 2008.11.20. 선고, 2007다27670 전원합의체 판결 | Whoes Hands on Your Corpse?: Historical and Critical Comment on a Case | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이준형(한양대학교)"
] | In 2008, the Korean Supreme Court came across a plaintiff's claim to return his deceased father who had left family more than four decades ago and lived with another spouse(de facto) in the meantime to be buried after death in a cemetery of his own choice. The major opinion decided to approve the claim, on the ground that the first legitimate son should be the “head worshiper” prescribed in the article 1008-3 of the Korean Civil Code and that the corpse belong to the head woshiper, i. e. the head woshiper has a special “limited ownership” over the corpse for the purpose of its burial and worship, adding that a deceased's disposition inter vivos, if any, be only ethically but by no means legally binding others, including the head worshiper of course.
Here scrutinized are the historical developments starting from the Roman criminal law of sepulchri violatio(trespass to grave) through the Canon law of the Middle Age and the doctrinal reactions to the challenges of anatomy and surgery to the formation of the “supporting the deceased” theory in Germany as well as the similarities in other european continental countries(Switzerland, Austria and France).
The comparative review shows that the right of remaining family could neither be identified as limited “ownership” nor that the controversy over a corpse be solved by exclusively attributing/distributing it to one/some of the descendants. In principle, the question should be approached in the extension of family support. | 법학 | null | kci_detailed_000159.xml | |||
ART001459485 | oai_dc | 복합부위통증증후군(CRPS)에 관한 법적 문제 고찰 -손해배상소송의 쟁점을 중심으로- | Study of Legal Issues on Complex Regional Pain Syndrome(CRPS) -Focusing on issues in damage compensation lawsuit- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"배현모(법무법인 소명)"
] | As Complex Regional Pain Syndrome(CRPS) is a new and rare illness, medical cause for it has not yet been clearly found out. Nevertheless, the patients continue to file lawsuits for damage compensation against wrongdoers or their insurers, claiming that the cause of the illness is certain actions of the wrongdoers. Moreover, the claim amount reaches to hundreds of millions of won through billions of won unlike other illnesses. Therefore, CRPS has become an important legal issue in the damage compensation lawsuit.
Even though the wound is slight, the development and result may be serious in the case of CRPS. As a result, a sharp conflict arises even regarding medical diagnosis of CRPS in the lawsuit. And, even if the medical diagnosis of CRPS is admitted, severe debates occurs with regard to many issues, which include the causation between accident and CRPS in connection with establishment of damage compensation liability and scope of liability like anamnesis, determination standard of aftereffect disability, and scope of admitted aftereffect medical expense in connection with scope of damage compensation.
In this study, I will review fundamental medical research on CRPS up to now and discuss principal legal issues in the damage compensation lawsuit focusing on lower court rulings. | 법학 | null | kci_detailed_000159.xml | |||
ART001459158 | oai_dc | Vertrauen und Misstrauen in der horizontal arbeitsteiligen Medizin | Vertrauen und Misstrauen in der horizontal arbeitsteiligen Medizin | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"에르빈 도이치(독일 괴팅겐대학)"
] | 현재의 의료 영역은 고도로 전문화되어 있고 더불어 의료의 분업화도 활발히 이뤄지고 있다. 의료의 분업화 과정에는 특히 서로 상이한 전문을 가진 의사들 간의 신뢰와 불신의 문제가 제기되는데 이러한 분업적 의료는 일반적으로 수직적 분업과 수평적 분업으로 구분할 수 있다. 수평적 분업의료에서는 원칙적으로 다른 의사의 주의깊은 행위에 대한 신뢰가 허용된다. 물론 그렇다고 하여 의사에게 검사 내지 재검사의 의무가 없는 것은 아니고 이를 필요로 하는 상황에서는 반드시 재검사가 이뤄져야 한다. 신뢰는 현행법의 과책원칙을 나타내는 ‘행위에 대한 자유’의 표현이며 의사에게 부주의한 행위가 있는 경우에는 신뢰가 인정될 여지가 없기 때문이다. 결국 재검사를 하여야 할 사정이 존재하지 않는 때에는 다른 영역으로부터의 보고를 원칙적으로 신뢰할 수 있다. 이처럼 본 연구에서는 지속적으로 전문화 및 분업화가 이뤄지고 있는 의료영역에서의 신뢰와 불신에 대한 개관을 통해 이를 재검토하고자 하였다.
| 법학 | null | kci_detailed_000159.xml | |||
ART001459289 | oai_dc | 불가항력적 의료사고에 대한 국가보상의 공법적 검토(지정토론문) | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이희정(고려대학교)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001459459 | oai_dc | 형법을 통한 생명의 보호 | The Life Protection by Criminal Law | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박무원(한경대학교)"
] | The bioethics as a comprehensive and normative control method of life sciences including the technology of advanced medical care, on the one hand, it has modified the conditions for allowing the progress of life sciences. On the other hand, it has put the brakes on attempts of life sciences violating the dignity and value of human beings, natural order. Positively, bioethics presents ethical bases, suggests organization of the legal and institutional conditions, and enables elimination of the legal and institutional obstacles, for the progress of life sciences. Negatively, it has presented justifiable prospects and road maps of life sciences, not to take indiscreet and intemperate turn of violating the dignity and value of human beings, natural order, and its such roles must be carried on. | 법학 | null | kci_detailed_000159.xml | |||
ART001459178 | oai_dc | 전문간호사 제도와 무면허 의료행위 | Advanced Practice Nurse System and Unlicensed Medical Practice | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김경례(한국소비자원)"
] | There is a system in Korea named “Advanced Practice Nurse System” qualified by the Minister of Health, Welfare and Family Affairs for Advanced Practice Nurse besides nurse licence.
Medical practice is, in today's medical law, understood as a general concept colligating medical practice, nursing practice and midwife practice and so on, for it is defined as a deed of medical technique practiced by medical personnel.
Referring to the fact that the Supreme Court recognizes medical personnel as people who have medical expert knowledge, nursing practice can be recognized as a region of medical business and therefore it is not necessary to prescribe nursing practice separately from the definition of medical practice on a precedent, because nurse belongs to medical personnel.
According to the precedent regarding ‘Unlicensed Medical Practice of Advanced Practice Nurse for Anesthesia’ recently sentenced by the Supreme Court, the medical practice is only allowed a doctor because it is ‘in need of special knowledge and experience because of high danger on human body' and it is judged to be an unlicensed medical practice prohibited in medical law if it is to be done by a nurse.
When considering the actual situation that System for Advanced Practice Nurse for Anesthesia is established under the circumstance that an anesthetist is in want and therefore the operation has not been performed on time, and that it is being expected an anesthetist to be in need, it is necessary to legislate for the range of medical practice of Advanced Practice Nurse so that Advanced Practice Nurse System can be practically legalized, for the role of Advanced Practice Nurse has the great possibility of shrinking because the precedent has considered Advanced Practice Nurse for Anesthesia doing anesthetic operation in clinic today as a potential wrongdoer.
| 법학 | null | kci_detailed_000159.xml | |||
ART001459285 | oai_dc | 불가항력적 의료사고에 대한 국가보상의 공법적 검토 | A Study on Irresistible Medical Accidents Victims Relief System in the Perspective of Public Law | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이호용(단국대학교)"
] | Medical practice is characterized by various physiological response and uncapacity of prediction, therefore when medical accident occur it's hard to prove medical professionals' mistake. Though medical accident by medical professionals' mistake will be compensated anyhow, about irresistible medical accidents, no one should be not bound to compensate, victims get into very difficult situation. So, the nation don't negligent irresistible medical accidents but compensate anyway. As in the past, to the legal principle's constitution of irresistible medical accidents, theory of liability without fault was adapted, and it was said this theory was illogical in theory of liability with fault. But the subject of compensation to irresistible medical accidents is nation, nation don't participate in medical treatment therefore there is no room to occur mistake. And it is not reasonable to regard medical agency as a truster of public service, to cast to it responsibility of medical accidents. The problem of compensation to irresistible medical accidents is understood under the theory of social compensation. Social compensation is consisted of compensation to sacrifice and contribution to nation and society and compensation to sacrifice revealed under danger, the compensation to irresistible medical accidents belongs to the latter. This is near to concept of relief, is applied to national compensation system supplementarily, and compensation have no option but to compensate minimum.
And there are not relation between national compensation system of irresistible medical accidents and proof liability transposition and theory of liability without fault, merely in side of sharing responsibility burden between medical treater and victim, it is reasonable to discuss transportation of proof liability and compulsive liability insurance together. | 법학 | null | kci_detailed_000159.xml | |||
ART001459275 | oai_dc | 의료사고 피해구제 및 의료분쟁 조정 등에 관한 법률안(대안)에 관하여…(지정토론문) | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"유병현(고려대학교)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001459454 | oai_dc | 정신질환자의 타해(他害)사고와 의료과오책임 | Psychotherapist's Liability for Failure to Protect Third Person | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"손흥수(서울고등법원)"
] | Psychiatrists who treat violent or potentially violent patients may be sue for failure to control aggressive outpatients and for the discharge of violent inpatients. Psychiatrists may be sued for failing to protect society from the violent acts of their patients if it was reasonable for the psychiatrists to have known or should have known about the patient's violent tendencies and if the psychiatrists could have done something that could have safeguarded in public.
The courts of a number of jurisdictions have imposed a duty to protect the potential victims of a third party on persons or institutions with a special relationship to that party. In the landmark case of Tarasoff v Regents of University of California, the California Supreme Court held that the special relationship between a psychotherapist and a patient imposes on the therapist a duty to act reasonably to protect the foreseeable victims of the patient. Under Tarasoff, when a therapist has determined, or under applicable professional standards should determine, that a patient poses a serious threat of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.
In addition to a Tarasoff type of action based on a duty to warn or protect foreseeable victims of psychiatric outpatients, courts have also imposed liability on mental health care providers based on their custody of patients known to have violent propensities. The legal duty in such a case has been stated to be that where the course of treatment of a mental patient involves an exercise of “control” over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls on the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient.
After going through a period of transition, from McIntosh, Thompson and Brady case, finally, the narrow rule of requiring a specific or foreseeable threat of violence against a specific or identifiable victim is the standard threshold or trigger element in the majority of states.
Judgements on these kinds of cases are not enough yet in Korea, so that it may be too early to try find principles in these cases, however it is hardly wrong to read the same reasons of Tarasoff in the judgements of Korea district courts.
To specific, whether a psychiatric institute was liable for violent behavior toward others depends upon the patients conditions, circumstances and the extent of the danger the patients poses to others; in short, the foreseeability of a specific or identifiable victim. In this context if a patient exhibit strong violent behavior toward others, constant observation should be required. Negligence has been found not exist, however, when a patient abruptly and unexpectedly attack others or unidentifiable victim. And the standard of conduct that is required to meet the obligation of “due care” is based on what the “reasonable practitioner” would do in like circumstances. The standard is not one of excellence or superior practice; it only requires that the physician exercise that degree of skill and care that would be expected of the average qualified practitioner practicing under like circumstances. All these principles have been established in cases of the U.S.A and Japan.
In this article you can find the reasons which you can use for psychotherapist's liability for failure to protect third person in Korea as practitioner. | 법학 | null | kci_detailed_000159.xml | |||
ART001459462 | oai_dc | 독성 한약재의 법적 규제에 관한 연구 | Study on The Regulation on Poisonous Medicinal Herbs | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"권기태(식품의약안정청)"
] | Objective: Poisonous Medicinal herbs can be considered as a risk factor to public health unless they are prescribed by Doctor of traditional Korean medicine. The proper method to manage them should be prepared to prevent risk factors caused by misuse and abuse of the poisonous medicinal herbs and enhance public health.
Methods: In this dissertation (paper), the definition, scope, management status, data about pharmacology and toxicity and media release regarding adverse reaction were understood after organizing documents, laws and regulations concerning poisonous medicinal herbs. Also, management methods are suggested by analyzing related examples and regulations in China, Japan and Hong Kong, where the use of herbal medicine is general.
Results: Methods for items for poisonous medicinal herbs, safety information management, management based on standardization of traditional processing methodology and reorganization and revision of related laws and regulations are established.
Conclusion: Proper laws and regulations are not yet established to manage poisonous medicinal herbs in Korea. In this regard, it is urgent to establish laws and regulations which can apply independently. The purpose of the laws and regulations should be to enhance management of poisonous medicinal herbs and prevent incidence of addiction and death, improving the public health. | 법학 | null | kci_detailed_000159.xml | |||
ART001459237 | oai_dc | 의료분쟁조정법안(약칭)의 민사법적 고찰 | A Study on the Medical Dispute Arbitration Law in Terms of Civil Law | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"전병남(변호사)"
] | Medical Dispute Arbitration Law had been debated on its legislation several times since Korean Medical Association's submission of the bill to the National Assembly in 1988, eventually in December, 2009, passed the National Assembly Standing Committee and was laid before the Legislation and Judiciary Committee, and thus its legislation is now near at hand. During the long process, it has provided a hot issue with our society. And yet, Medical Dispute Arbitration Law has differed considerably in legislative content depending on the main body of proceeding the enactment, which subsequently was given the mixed comments of ‘Act on Malpractice-related Damage Relief’ or ‘Medical Indemnity Act', and this legislative bill also cannot be free from this debate.
It is desirable that medical disputes between doctors and patients be resolved through conciliation between the parties concerned. But, because reaching a compromise is difficult owing to deep emotional conflicts between the parties, difficulties in investigating a cause and requiring a high amount of settlement money, etc., it is inevitable to seek a resolution by third party intervention. By the way, such an arbitration by third party is based on the compromise of the interested parties and thus has a limitation of not being able to satisfy both parties completely. Therefore, the legislative bill made for arbitration of medical disputes between the parties will have to prepare an institutional system for the parties to easily understand and accept. Also, problems occurred in the legislative bill will have to be corrected through an in-depth discussion in order for the legislative bill to work as an effective system.
| 법학 | null | kci_detailed_000159.xml | |||
ART001510763 | oai_dc | 의료개념의 다층적 이해와 법 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"손흥수(서울고등법원)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001510775 | oai_dc | 물리치료사의 업무범위와 의사의 지도권에 관한 법적 검토-청주지방법원 2010.2.3. 선고 2009노1317 판결 | A Legal Review on Physical Therapists' Roles and Doctors' Superintendency | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김한나(한양대학교); 김계현(연세대학교)"
] | In the case of Korea, both of modern medicine and oriental medicine are admitted as medical practices in the system. In other words, healthcare system is dualized. However, medical practice that corresponds to oriental medicine in Korea is substitution of medical practice in cases of foreign countries. For use of medical devices, it is provided only for doctors and medical technician relevant to use.
Particularly, although oriental medicine is recognized as orthodox medicine in terms of the features of Korean medical system, superintendency of oriental doctors is not identical with that of doctors for use of medical devices and superintendency toward medical technicians.
Recently, Cheongju District Court decided that superintendency of oriental doctor upon physical therapist is not acknowledged. It can be said that the judgement is opposed to the original verdict which judged that oriental doctors' employment and guidance of oriental doctors upon physical therapist is permissible.
Hence this study aimed to review on domestic medical law system, which is dualized, roles of medical professionals, intent of the medical license system, provisions related to medical technician law and relevant precedents.
Regulations on practices other than licensed practices by medical professionals are made because medical practices may affect on danger toward life and body of human and public health also. Therefore, the nation regulates medical professionals having licenses to perform medical practices within the range of the licenses. It is clearly prescribed that medical technicians may perform medical practices under instructions of doctors or dentists pursuant to the medical technician law. In addition, the court also judges that it is out of the license of oriental doctors if they use CT devices and limits the use of modern medical devices by oriental doctors. That is to say that it limits oriental doctors' employment of medical technicians and pursuant of oriental doctors on medical technicians as well. | 법학 | null | kci_detailed_000159.xml | |||
ART001510768 | oai_dc | 영국 NHS의 모성서비스 관련 의료과오보상제도의 경험과 그 함의 | The NHS litigation scheme related to Maternity Services in UK: its experiences and implications | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"한동운(한양대학교); 황정혜(한양대학교)"
] | Maternity services is often perceived as a troublesome business and obstetric litigation is on the increase in Western countries. Overall, the number of claim and cost of litigation to the NHS Litigation Authority (NHSLA) from maternity services in the UK is increasing every year. Maternity services account for 60–70% of the total sum paid. This has widespread implications for both the individual practitioners and the institutions where they work, due to increasing malpractice insurance premiums. Fear of litigation is also attracting fewer medical graduates into the specialty, leading to a recruitment crisis in obstetrics and gynaecology. The litigation process can cause pain, suffering and distress to clinicians as well as to the patients and their families.
Litigation in maternity services is the result of a complex of events when malpractice (presumed or real) impacts on the attitude of pregnant women and their environment. In such complexity, information is mandatory but may often be misinterpreted. If messages are not tailored to the receiver’s capacity, communicating well with the pregnant patient becomes crucial. Therefore, to reduce medicallegal issues in obstetrics, increasing attention and an applicable standard of obstetric care to avoid negligence and medical errors should go along with other measures. Considering UK’s experiences, NHS redress scheme make it easier to pursue small claims and birth related claims, without necessarily reducing the number of claims processed through the conventional legal system and perhaps encouraging even more of them. The task of dealing with the greater number of inquiries into their practice would inevitably create an added burden for clinicians and hospital managers. Thus further proposals are required to limit the cost of processing inflated claims and to consider whether clinicians should be given some protection from litigation alleging a failure to prevent birth related impairment. | 법학 | null | kci_detailed_000159.xml | |||
ART001510770 | oai_dc | 사전의료지시의 한계 | The Limitations of Advance Directive | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"오세혁(중앙대학교); 정화성(중앙대학교)"
] | Advance directive refers to a description of the treatment method a patient wants to be provided with in case where the person is unconscious or lacks an ability to decision making in a future period or a declaration of intention that delegates and appoints another person who makes a decision regarding a treatment method on behalf of the person. Advance directive is usually a document form, but oral statement is acceptable as well. Advance directive may have a variety of forms though, it basically consists of two basic forms. That is, one is a living will, and the other is a surrogate decision making. Though the importance of advance directive has been emphasized, and the necessity of adopting the system has been strongly argued for so far, the debates on criteria, method, and procedure alike have not yet reached an agreement. It is because even the concept of advance directive is more or less ambiguous, and each specific method has its own theoretical limitations and practical constraints. Thus the inquiries on advance directive raised in the study are summarized as the meaning, practicability, and philosophical foundation of the advance directive.
Firstly, the theoretical limitations of Advance directive may be categorized into conceptual and moral limitations. In case of conceptual limitations, authors of advance directives may not be well aware, in advance, of the particular situation in which he or her will experience in the future, and patients may experience the change in his or her values and lack the understanding and information about the future situation due to the changes in treatment methods. In case of moral limitations, a patient has a limited moral autonomy right and self identity that have an impact on his or her preference.
Secondly, in case of practical constraints for advance directive, there exist cultural features, low ratio of documentation, as patients themselves admit, and low predictability and stability of patient's own preference regarding life-sustaining care. And the problem of validity and accuracy in proxy's decision making is also raised. Those who administer a living will, especially, may have a difficulty in understanding the directive by a patient, so that the accuracy of execution cannot be secured. In the sense, it is needed to implement a legal device in order to solve such problems. In summary, it is urgently required to understand the limitations and explore desired alternatives to overcome the relevant problems in advance, which must contribute to successfully adopting and effectively operating the advance directive system in Korea.
| 법학 | null | kci_detailed_000159.xml | |||
ART001510773 | oai_dc | 환자의 의무기록 관련 의료인의 법적 지위 | Legal Status of Medical Personnel on Medical Records | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이백휴(의료정책연구소)"
] | This study is a paper reviewed legal status of medical personnel and issues of law on recently discovered medical records. As the increase of medical personnel who have gone through the administrative disposal in regards to the medical records, it is needed to examine the legal issue or dispute on the medical records under the current law.
Medical records are the statement on patient’s medical conditions made by the medical personnel. This records are used as important source for patient’s further treatment. This becomes the communication route between the patients and the other medical personnel, and it provides the patients a right to find out their medical information.
According to the Medical Service Act (Article 21), a medical personnel shall prepare respectively a record book of medical examination and treatment. And medical personnel shall make a signature. Furthermore, the medical personnel or the opener of the medical institutions must preserve the record book (including an electronic medical record). Meanwhile, the issues of a ban on false entry, additional record, revision or manipulation on the medical record have been recently on the rise.
This paper briefly examined the major issues in regards to the medical records. It especially clarified the legal duty on medical records and its major-contentious-issues. At the same time, it pointed out the problems of the unreasonable over interpretation of the law. Furthermore, this suggested the guidelines for the further discussion and review.
| 법학 | null | kci_detailed_000159.xml | |||
ART001510765 | oai_dc | 유사의료/보완의료에 대한 보건의료정책학적 고찰 | A Critical Review on Complementary and Alternative Medicine/Pseudo-medicine/Quackery: Implication on Health Policy | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"한동운(한양대학교); 황정혜(한양대학교)"
] | Nowadays, it is surely the quack which stands as one of the most controversial, problematic. the quack has been a consistent target of contested public protection strategies in the past few centuries in many countries. Recently, complementary and alternative medicine (CAM) is increasingly utilized and accepted by patients and providers throughout the health care system in the world, most accounts attribute this growing acceptability to the shortcomings of conventional medicine, the appeal of CAM’s core beliefs, and the growing body of research indicating that CAM actually works. However, the governments of western countries have called for measures to ensure that the public are protected from incompetent and dangerous practitioners. Common to these controversies has been a suggestion to ban, exclude or limit the medical practice of those deemed to be damaging rather than improving the health of individuals as a measure of public protection. This article describes the experiences of western counties' health care system which is moving in a more pluralistic direction. By examining the ways in which regulatory efforts in the countries have come to address what is invariably described as a growing interest in CAM, this study show how the problem of CAM/quackery today is increasingly located in an ethical field of practitioner competency, qualifications, conduct, responsibility and personal professional development, regardless of the form of therapy in question. Many countries developed a series of measures and strategies to contain the acceptance of CAM groups, such as insisting on scientific evidence of safety and efficacy, resisting integration of CAM with conventional medicine and opposing government support for research and education. In a sense, those countries' movements serve to protect not only patients, but the dominant position of medicine and its allied professions, and to maintain existing jurisdictional boundaries within the healthcare system. The popular support for CAM will require that health professional stakeholders continue to address the challenges this poses, and at the same time protect their position at healthcare system. To cope with the quack, professional body, public sector and health authorities should consider the safety of consumers of healthcare and responding to the demands of the community for CAM therapies as well as the claims of the established healthcare professions. Finally, some implications for future health care were suggested. | 법학 | null | kci_detailed_000159.xml | |||
ART001510766 | oai_dc | 유사의료행위 대체의료행위 등에 관한 법정책적 쟁점의 검토 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"문현호(대법원)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001510771 | oai_dc | 의료관광 시행 이후에 나타난 성과와 향후의 과제 | A Study on Medical Tourism Evaluation and Institutional Challenges | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"문성제(선문대학교)"
] | In the presidential new-year address in January 2, 2009, the President declared that 17 kinds of new driving force of growth that could create high-added value be selected to step up job creation and an increase in national wealth. The Ministry of Strategy & Finance announced plans for the 17 kinds of new driving force of growth after the presidential address. Specifically, that ministry announced an ambitious plan to select health care service named ‘Global Health Care' as one of the five service industries that could create high-added value in a move to provide jobs to approximately 7,000 people and produce pervasive economic effects coming up to a trillion and 10 billion won. To attain the goal, several action plans were mapped out to globalize domestic medical institutions, to rearrange the relevant law and system for the purposes of raising awareness of domestic medical institutions among foreign patients and improving their accessibility and post-satisfaction level, and to lure lots of foreign patients through financial assistance.
At the same time, the government announced plans to lure severe patients such as those in want of surgery or organ transplant, cancer patients or patients with heart diseases to create high-added value on a long-term basis. Thus, the government announced that it planned to formulate such strategies and to enter an agreement with foreign governments to attract plenty of foreign patients. In fact, however, there are little full-scale evaluation of medical tourism though it's been a year since it was introduced, and there are few actual efforts to implement what the government announced, either. According to the results of the evaluation of medical tourism, domestic hospitals are said to undergo little significant changes after the introduction of medical tourism, which shows that they take a dim view of medical tourism instead of having expectations for that.
The medical tourism industries in major Asian countries have been dynamized, and there are several factors of their success. First of all, they are successful in creating new market opportunities by incorporating related industries such as medicine, tourism and IT and in developing medical tourism products and differentiated marketing by taking advantage of their competitive edge. They have offered full-fledged assistance to this sector, and another reason is the improved international credibility of their medical service. If our country fails to pinpoint our problems in consideration of the cases of the Asian countries or to provide appropriate financial aid, our country is bound to lag behind them. Given this reality, how to assess medical tourism and what challenges this sector is confronted with are discussed.
| 법학 | null | kci_detailed_000159.xml | |||
ART001510759 | oai_dc | 의료행위에 관한 용어정리 및 판례분석 | An Analysis of Korean Supreme Court Cases Regarding Medical Practice and Clarifying the Meaning of Medical Practice | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"노태헌(서울중앙지방법원)"
] | This article analyzes legal meaning and definition of medical practice examining Korean Supreme Court cases. Until now, there is no right answer about the meaning of medical practice and it is also hard to define of it. Moreover, not only Acts and regulations containing medical practice but also many cases ruling a person who practice medicine, the concept of medical practice involves various meanings. So, it has caused confusion. In order to solve this problem, this article divides the medical practice's meaning into range and nature within prohibition article of the Medical Act about unlicensed personnel who prac1. tice medicine. After providing a explanation of the meaning of medical practice according to amendment of the Act, this article disputes the meanings of the several cases following the amendment. And then analyzing non-medical person's unlicensed medical practice and medical person's unlicensed medical practice.
In order to provide more accurate legal concept of medical practice when Korean government amends the Medical Act or making policies in this field, this classifying analysis approach should be needed. Looking at the result, in general, Korean Supreme Court has interpreted unlicensed prohibition clause of the Medical Act widely; not only non-medical person's unlicensed medical practice but also medical person's unlicensed medical practice.
Therefore, this article suggests that the prohibition clause needs to be careful applying to non-medical practice. Because, in fact, even though there are some necessity of non-medical practice, there are no qualificatory or license system of non-medical practitioner in the Medical Acts or regulations forbidding whole non-medical practices. Furthermore, the Supreme Court has decided medical person's unlicensed medical practice too narrowly, thus it does not keep up with rapid change of medical development and people's demands these days. Regarding this subject, in order to take advantage of medical practitioners effectively and cope with increasing people's medical demands, this article proposes that medical person's unlicensed medical practice only to be prohibited in case of endangering our public health.
| 법학 | null | kci_detailed_000159.xml | |||
ART001510767 | oai_dc | 의료법 등의 양벌규정과 책임원칙 | Joint Penal Provisions and Criminal Liability in Medical Law | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"황만성(원광대학교)"
] | In November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability.
After the Korean Constitutional Court’s judgment, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On January 2010, the old joint penal provisions of 110 laws were revised. The new revised joint penal provision adds only an additional sentence: “If a juristic person, an entity or an individual perform due care and supervision over its employee for the prevention of such a crime, it will be exempted from the punishment”.
But an presumption of negligence clause that is added in the new revised joint penal provision is still vacuum in concerned with supervision responsibility. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side.
Especially, when joint penal provision is applied to hospital as administrative punishment, according to the hospital is a (juridical) foundation or not, the application of the joint penal provision is different and unfaithful.
In my opinion, therefore, a corporation liability could be considered according to various liability of employee's business and the crime its employee committed because of an organizational failure of the corporation. | 법학 | null | kci_detailed_000159.xml | |||
ART001510769 | oai_dc | 의료과실판단에서의 가이드라인의 역할-일본에서의 논의를 참고하여 | The Role of Guidelines on the Judgement of Medical Negligence - Referring to Debates in Japan- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"송영민(원광대학교)"
] | According to the development of medical technology, new medical treatments have been dramatically increased as an inevitable consequence, however, it is not easy for medical workers to learn the knowledge that is necessary for new medical treatments and their additions in the medical services. Therefore, it could not be helped increasing the guidelines for applying new medical treatments, and then, the problem would come out whether to attribute the medical negligence to the doctors who did not follow the guidelines when the patient became worse because of his non-compliance.
Nevertheless, there is no document to review the problem mentioned above and also no definite precedents. Thus, the civil lawful character and obligation of guidelines on the lawsuit against the medical default have been examined in this studies.
The medical negligence is defined as usual doctors violate the care obligation which is demanded for them to follow when they treat patients under the proper medical standard in those days. It is resonable to assume that the matter of guidelines is to decide the level of the care obligation, that means the care which is required of the rational doctors under same circumstances, and in general, the experts' testimonies should be needed in this case.
In addition, the issue comes out whether the guidelines can be the standard of the judgement of the medical negligence. Finally, I suppose, the evaluation of the issue depends on who makes the guidelines, what materials are based on, and also depends on whether there is another guidelines in the same disease, what the purpose of guidelines is to save the medical costs or to realize the appropriate medical services, in addition, it depends on how often renew the guidelines, and how wide is the usage of guidelines. | 법학 | null | kci_detailed_000159.xml | |||
ART001510760 | oai_dc | 의료행위의 정의와 관련하여 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이숭덕(서울대학교)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001510762 | oai_dc | 의료개념의 다층적 이행와 법 | Understanding Medicine as a Multi-dimensional Concept in the Legal Context | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김나경(성신여자대학교)"
] | This article analyses the concept of medicine in the legal context. It is not easy to define the concept of medicine because medical practice has various dimensions and the situation in which the practice is performed has a broad variety. The duty of medical law is to build the boundary of protection in that the nature of medicine would not be distorted by the factors of social systems like industry or governmental authorities. Without understanding the various dimensions - especially the dimension of Humanities and Sociology - of the medicine it is not possible to draw the limit on the performance of medicine appropriately. Concerning the medical practice (especially in the context of the regulation of medical licence), the enacted law (Medical Act) defines the concept just for form's sake and it finally depends on the interpretation of the legal enforcement authorities. Moreover, between the judgments of the courts there exists no coherent principles for the regulation and the interpretation of the Medical Act depends often on the riskiness, the abstract concept, which finally leads the interpretation to depend on the subject of the practice. On the contrary, the development and scientific movement of the technology tends to tighten the range of the medical professionals of medical practice and the perspectives of the medicine. Medical act is actually oriented at the patient's understanding of him- or herself. The above-mentioned tendency of the interpretation and the legal policy could lead the medicine away from its nature. | 법학 | null | kci_detailed_000159.xml | |||
ART001408180 | oai_dc | 허위진단서작성1) 죄의 구성요건 등에 대한 고찰 - 대법원 2006.3.23. 선고 2004도3360호 판결을 중심으로- | A Study Of the Configuration requirements of the Crime of Issuance of Falsified Medical Certificates, etc. - Focusing on Supreme Court Decision 2004DO3360 Delivered on March 23, 2006. | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김영태(서울고등검찰청 부장검사)"
] | The Article 17 (1) of the Medical Service Act states that no one but medical doctor, dentist or herb doctor shall prepare medical certificate, post-mortem examination, certificate or prescription. Though medical certificate, post-mortem examination or certificate is a private document issued by doctor personally, it is accepted as reliable as public document. Therefore, for medical certificate, post-mortem examination or certificate, unlike other private document to guarantee authenticipy of the content, the Article 233 of the Criminal Act states the Crime of Issuance of Falsified Medical Certificates. In other words, the Criminal Act Article 233 states that If a medical or herb doctor, dentist or midwife prepares false medical certificate, post-mortem examination or certificate life or death, one shall be punished by imprisonment or imprisonment without prison labor for not more than three years, suspension of qualifications for not more than seven years, or a fine not exceeding thirtht million won. The subject of the Crime of Issuance of Falsified Medical Certificates is only a medical or herb doctor, dentist or midwife and the eligibility requirements are specified in the Medical Service Act. Medical certificate is the medical document to be issued by medical doctor to certify the health status and show the Jugdement about the result of the diagnosis, Post-mortem examination is the document to be listed by medical doctor to confirm medically about human body or dead body, and Certificate life or death is a kind of medical certificate to verify the fact of birth or death, the cause of death, such as Birth Certificate, Certificate of Stillbirth or Certificate of Dead Fetus. To constitute the crime of Issuance of Falsified Medical Certificates, it is necessary for the contents of the certificate to be substantially contrary to the truth, as well as it is needed the subjective perception that the contents of the certificate are false. The Supreme Court Decision 2004DO3360 Delivered on March 23, 2006 declared that although the Defendant did not MRI scan, etc. for precise observation about the disability status of Mr Park, it was difficult to believe that the contents of the Disability Certificate of this case were contrary to the objective truth or the defendant had perception that the contents of the certificate were false. I don't agree with the Supreme Court Decision, because the Supreme Court confirmed the decision by the court below despite the Supreme Court should have made the court below retry the reason why the Defendant did not MRI scan, etc. for precise observation about the disability status of Mr Park. | 법학 | null | kci_detailed_000159.xml | |||
ART001408209 | oai_dc | 무의미한 연명치료 중단 등의 기준에 관한 재고 - 대법원 2009.5.21 선고 2009다17417사건 판결을 중심으로- | Review on the Justifiable Grounds for Withdrawal of Meaningless Life-sustaining Treatment - Based on a case of Supreme Court's Sentence No. 2009DA17417 (May 21, 2009)- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"문성제(선문대학교)"
] | According to a case of Supreme Court's Sentence No. 2009DA17417 (May 21, 2009), the Supreme Court judges that ‘the right to life is the ultimate one of basic human rights stipulated in the Constitution, so it is required to very limitedly and conservatively determine whether to discontinue any medical practice on which patient's life depends directly.’ In addition, the Supreme Court admits that ‘only if a patient who comes to a fatal phase before death due to attack of any irreversible disease may execute his or her right of self-determination based on human respect and values and human right to pursue happiness, it is permissible to discontinue life-sustaining treatment for him or her, unless there is any special circumstance.’ Furthermore, the Supreme Court finds that ‘if a patient who is attacked by any irreversible disease informs medical personnel of his or her intention to agree on the refusal or discontinuance of life-sustaining treatment in advance of his or her potential irreversible loss of consciousness, it is justifiable that he or she already executes the right of self-determination according to prior medical instructions, unless there is any special circumstance where it is reasonably concluded that his or her physician is changed after prior medical instructions for him or her.’ The Supreme Court also finds that ‘if a patient remains at irreversible loss of consciousness without any prior medical instruction, he or she cannot express his or her intentions at all, so it is rational and complying with social norms to admit possibility of estimating his or her own intentions on withdrawal of life-sustaining treatment, provided that such a withdrawal of life-sustaining treatment meets his or her interests in view of his or her usual sense of values or beliefs and it is reasonably concluded that he or she could likely choose to discontinue life-sustaining treatment, even if he or she were given any chance to execute his or her right of self-determination.’ This judgment is very significant in a sense that it suggests the reasonable orientation of solutions for issues posed concerning withdrawal of meaningless life-sustaining medical efforts.
The issues concerning removal of medical instruments for meaningless life-sustaining treatment and discontinuance of such treatment in regard to medical treatment for terminal cases don't seem to be so much big deal when a patient has clear consciousness enough to express his or her intentions, but it counts that there is any issue regarding a patient who comes to irreversible loss of consciousness and cannot express his or her intentions. Therefore, it is required to develop an institutional instrument that allows relevant authority to estimate the scope of physician's medical duties for terminal patients as well as a patient's intentions to withdraw any meaningless treatment during his or her terminal phase involving loss of consciousness. However, Korean judicial authority has yet to clarify detailed cases where it is permissible to discontinue any life-sustaining treatment for a patient in accordance with his or her right of self-determination. In this context, it is inevitable and challenging to make better legislation to improve relevant systems concerning withdrawal of life-sustaining treatment. The State must assure the human basic rights for its citizens and needs to prepare a system to assure such basic rights through legislative efforts. In this sense, simply entrusting physician, patient or his or her family with any critical issue like the withdrawal of meaningless life-sustaining treatment, even without any reasonable standard established for such entrustment, means the neglect of official duties by the State. Nevertheless, this issue is not a matter that can be resolved simply by legislative efforts. In order for our society to accept judicial system for withdrawal of life-sustaining treatment, it is important to form a social consensus about th... | 법학 | null | kci_detailed_000159.xml | |||
ART001408168 | oai_dc | 지정토론문 - 최근 10년 보건의료법 환경 및 건강보험법정책의 변화 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정진경(서울중앙지방법원 부장판사)"
] | 법학 | null | kci_detailed_000159.xml | |||||
ART001408174 | oai_dc | 후유장해를 둘러싼 민사책임의 쟁점들 - 대법원 2008.3.27. 선고 2007다76290 판결을 중심으로- | Patient's Permanent Lesion and Physician's Medical Malpractice | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김천수(성균관대학교)"
] | In this paper, the Judgment 2007DA76290 of the Korean Supreme Court was analysed in two points of the legal theory and litigation. The judgment arouses some issues of medical malpractice liability. They includes the concept of the complications and permanent lesion and the difference between them, some problems in a judge's applying the requirements for the physician's tort liability to the medical malpractice situations, the theory of obligation de moyens related with the burden of proof of the negligent conduct for a physician's liability for misperformance of contract, the influence of a patient's physical conditions on the physician's liability, the breach of duty to disclose in selecting the safer one of the treatment methods bringing about the complications or leaving the permanent lesion and so on. In the situations of the case referred to above, the plaintiff should have tried to establish that a reasonable physician in the specific situation of the case would have substituted the safer method of treatment for the method in the case. If the plaintiff had succeeded in establishing it, he or she could have recovered even the physical harm resulting from the permanent lesion brought about by the complications of the specific treatment in the case. The plaintiff failed to do so and recovered only the emotional distress which the patient suffered owing to the physician's breach of the duty to disclose. Therefore the legal malpractice of the counsel might be found in this case. | 법학 | null | kci_detailed_000159.xml | |||
ART001408186 | oai_dc | 정신질환자의 비자발적 입원에 관한 비교법적 검토 - 독일법을 중심으로 - | Rechtsvergleichende Überprüfungen über zwangsunterbringung der psychischen Patienten | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이재경(성균관대학교)"
] | Im Allgemeinen auch psychische Patienten können sich darüber selbst entscheiden, ärztliche Behandlung zu nehmen und ins Krankenhaus aufgenommen zu werden. Im Südkorea bei der zwangsweisen Unterbringung wird kein KBGB des privatlichen Rechts, sondern Gesetz über psychisch Gesundheitspflege des öffentlichen Rechts vorzüglich verwandt. Aber das noch kann ein selbst Bestimmungsrecht von der psychischen Patient verletzen.
Im Deutschland regelt BGB § 1906 Zwangsunterbringung der psychische Patienten, die Gefähr des Selbstmord oder der Eigengefährdung haben. Außerdem hat jedes Land eigen Gesetz über psychischen Kranken, das öffentliche Vorschrift für Zwangsunterbringung regelt. Im Fall der Zwangsunterbringung im Deutschland BGB § 1906 wird primärer als öffentlich Rechts verwandt, um die Selbstbestimmungsrecht der Patienten zu unterstützen.
Auch im Korea KBGB(koreanisches Bürgerliches Gesetzbuch) Veränderungen für die Einführung des Betreuungsrechts, die sich mit der Zwangsunterbringung befassen, sollten diskutiert werden, damit die Selbstbestimmung schätzen. | 법학 | null | kci_detailed_000160.xml | |||
ART001408156 | oai_dc | 의료소송에 있어 손해배상액 산정에 관한 최근 10년간 판례의 동향에 대한 토론문 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이덕환(한양대학교)"
] | 법학 | null | kci_detailed_000160.xml | |||||
ART001408147 | oai_dc | 손해배상액 산정에 관한 최근 10년간 판례의 동향(上) | The Trend of Precedents about Calculation of Damage Compensation for Last Decade | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박영호(대구고등법원)"
] | This thesis introduces the trends of korean courts' ruling on damages in medical malpractice cases for past 10 years.
First of all, Korean courts' ruling have had a tendency to pay only non-economic damages for not taking the informed consent.
If a doctor cannot get the informed consent from a patient, he compensate only non-economic damages for the infringement of self-determination rights of patient. It's enough for the plaintiff to prove the infringement of self-determination rights, if the plaintiff just want to get non-economic damages.
The Korean Supreme court have ruled that if plaintiffs want to get economic damages for the infringement of self-determination rights or informed consent, plaintiffs must prove that the infringement of self-determination rights is the proximate cause of the economic damages of patient.
There is another tendency for the Korean Supreme court to limit the damages in medical malpractice cases on the ground of patient's diseases' dangerousness or patient's idiosyncrasy.
In the past courts often limit the damages only to 70~80% of total damages, but now a days courts mostly limit the damages to 20~30%.
This thesis also introduce the Korean courts' trends about Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care. | 법학 | null | kci_detailed_000160.xml | |||
ART001408197 | oai_dc | 의료계약의 당사자로서의 「환자」와 관련한 문제에 대한 검토 | Rechtliche Probleme über die Patienten im Arztvertarg | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김민중(전북대학교)"
] | Die ärztliche Behandlung des Patienten durch den Arzt geschieht im Rahmen eines Rechtsverhältnisses. Das Arzt-Patienten-Rechtsverhältnis stellt regelmässig der Arztvertrag oder Behandlungsvertrag dar.
Arzt und Patient schliessen einen Arztvertrag ab. Grundsätzlich verbindet der Arztvertrag die Partner persönlich. Aber minderjährige Patienten sind geschäftsunfähig oder in der Geschäftsfähigkeit beschränkt. Minderjährige Patienten vermögen also allein grundsätzlich keine wirksamen Willenserklärungen abzugeben und somit keine wirksamen Arztverträge zu schliessen. Arztverträge von minderjährigen Patienten sind nur bei Einwilligung der gesetzlichen Vertreter wirksam.
Vom Abschluss des Arztvertrags ist deutlich die Einwilligung zur Behandlung zu unterscheiden. Die Einwilligung ist kein Rechtsgeschäft. Die Einwilligung durch die Eltern erfolgt nur solange der minderjährige Patient nicht reif genug ist, die Entscheidung selbst zu treffen. Jugendlicher Patient ist z.B. in der Lage, die Einwilligung selbst zu geben, sofern er Wesen, Bedeutung und Tragweite der Behandlung zu verstehen vermag.
Der Vorschriften des KBGB zur Geschäftsführung ohne Auftrag gelten, wenn der Arzt einen Bewusstlosen versorgt. Nach §734 KBGB erfolgt die Geschäftsführung ohne Auftrag dann zu Recht, wenn sie dem Interesse und dem wirklichen oder mutmasslichen Willen des Patienten entspricht.
Der Patient kann aus einem Ausland stammen. Für ausländische Patienten gilt generell das koreanische Recht. Grundsätzlich sollte man einen des Koreanischen nicht mächtigen Ausländer nach Möglichkeit in seiner Sprache aufklären und dann den Arztvertrag abschliessen.
Aufgrund der Privatautonomie kann jeder Patient frei entscheiden, ob, mit wem und worüber er einen Arztvertrag abschliesst. Deswegen ist auch der Wille des Anhängers vom Sekten und abweichenden Lebensauffassung grundsätzlich zu berücksichtigen. Zum Beispiel handelt der Zeuge Jehovas auf eigene Gefahr, wenn er eine notwendige Behandlung ablehnt. Aber die Freiheit, eine gebotene Behandlung abzulehnen, kann in Konflikt mit dem Schutz des minderjährigen Patienten gelangen. Sobald die sektiererische oder abweichende Haltung droht, einen minderjährigen Patienten zu gefährden, hat das elterliche Sorgerecht einzuschränken. | 법학 | null | kci_detailed_000160.xml | |||
ART001408215 | oai_dc | 인체 유래 물질의 재산권성에 대한 의료법학적 고찰 | Medicolegal Study on Human Biological Material as Property | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이웅희(서울내과외과의원 원장)"
] | (Background) Recent biotechnological breakthroughs are shedding new lights on various ethical and legal issues about human biological material. Since Rudolph Virchow, a German pathologist, had founded the medical discipline of cellular pathology, issues centering around human biological materials began to draw attention. The issues involving human biological materials were revisited with more attention along with series concerns when the human genome map was finally completed. Recently, with researches on human genes and bioengineering reaping enormous commercial values in the form of material patent, such changes require a society to reassess the present and future status of human tissue within the legal system. This in turn gave rise to a heated debate over how to protect the rights of material donors: property rule vs. no property rule.
(Debate and Cases) Property rule recognizes the donors' property rights on human biological materials. Thus, donors can claim real action if there were any bleach of informed consent or a donation contract. Donors can also claim damages to the responsible party when there is an infringement of property rights. Some even uphold the concept of material patents overtaking.
From the viewpoint of no property rule, human biological materials are objects separated from donors. Thus, a recipient or a third party will be held liable if there were any infringement of donor's human rights. Human biological materials should not be commercially traded and a patent based on a human biological materials research does not belong to the donor of the tissues used during the course of research.
In the US, two courts, Moore v. Regents of the University of California, and Greenberg v. Miami Children’s Hospital Research Institute, Inc., have already decided that research participants retain no ownership of the biological specimens they contribute to medical research. Significantly, both Moore and Greenberg cases found that the researcher had parted with all ownership rights in the tissue samples when they donated them to the institutions, even though there was no provision in the informed consent forms stating either that the participants donated their tissue or waived their rights to ownership of the tissue. These rulings were led to huge controversy over property rights on human tissues.
This research supports no property rule on the ground that it can protect the human dignity and prevent humans from objectification and commercialization. Human biological materials are already parted from human bodies and should be treated differently from the engineering and researches of those materials. Donors do not retain any ownership.
(Suggestions) No property rule requires a legal breakthrough in the US in terms of donors' rights protection due to the absence of punitive damages provisions. The Donor rights issue on human biological material can be addressed through prospective legislation or tax policies, price control over patent products, and wider coverage of medical insurance.
(Conclusions) Amid growing awareness over commercial values of human biological materials, no property rule should be adopted in order to protect human dignity but not without revamping legal provisions. The donors' rights issue in material patents requires prospective legislation based on current uncertainties. Also should be sought are solutions in the social context and all these discussions should be based on sound medical ethics of both medical staffs and researchers. | 법학 | null | kci_detailed_000160.xml | |||
ART001408204 | oai_dc | 건강보험과 자동차보험의 선택적 우선적용에 대한 고찰 - 경과실 자기신체피해 교통사고를 중심으로- | A Study How to Decide the Priority on choosing between National Health Insurance and Automobile Insurance In Korea - Focused on medical expenses of the Insured's own bodily Injury Coverage- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"송기민(한양대학교); 최호영(건강보험심사평가원); 김진현(서울대학교)"
] | A person is injured in car accident caused by his/her slight negligence except he/she causes accident by his/her willfulness or gross negligence. Because the National Health Insurance Corporation(hereinafter called “Corporation”) shall not provide any insurance benefit “when he has intentionally or through gross negligence caused a criminal conduct or intentionally contributed to the occurrence of an accident” referred to in Article 48(1) 1 of the National Health Insurance Act.
So, if he/she is insured by his/her own bodily injury coverage, he/she can be compensated for his/her medical expenses. The injured have the rights to file either National Health Insurance claim and Automobile Insurance claim but there is no clear and definite adjustment clause. The claim disputes between National Health Insurance(hereinafter called “NHI”) and Automobile Insurance(hereinafter called “AI”) in the own bodily injury coverage makes some problems. Firstly, there are some differences in co-payments which he/she chooses between NHI and AI. Profit per a patient is higher in the NHI than in the AI. Secondly, it can provoke criticism that people shall unnecessarily pay double contributions. Lastly, it can raise moral hazards. For example, if he/she can cover the compensations when the insured receives the compensations from his/her insurer, the Corporation can be claimed by medical care institution payment of the health care benefit costs.
In conclusion, first of all, to improve the national health and preserve the insured's rights the Corporation shall keep notice these facts. | 법학 | null | kci_detailed_000160.xml | |||
ART001408214 | oai_dc | 유사의료행위에 관한 법적 검토 | Legal Review of Similar Medical Practice | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김한나(대한의사협회); 김계현(대한의사협회)"
] | This study aims to review legal problems of similar medical practice and suggest methods of improvement. Similar medical practice refers to all medical practices conducted in the state that human qualification is not fulfilled. It may cause serious damages on health and lives of national people. Currently, similar medical practices are recognized as unlicensed medical practices and prohibited based on the Medical law and additionally punished by then special law in Korea.
However, the current Medical Law does not provide clear and accurate concept of medical practices so that it is difficult to regulate similar medical practices. The issue of complementary and alternative therapy related to similar medical practices is also in special state different from other countries. In addition, since similar medical practices lack of evidences in terms of safety, the dangerousness of accidents is high and it may affect badly on health of national people and health care policies.
Methods of improvement in order to resolve problems regarding similar medical practices are: first, concept and scope of medical practice should be clear, accurate and concrete. Second, complementary and alternative therapies related to similar medical practices need to be strictly examined and the supervisory right should be given to doctors should be given even though a part of it is allowed. Third, research institutes specialized in the field should be established for scientific examination of complementary and alternative therapy and objective research results should be open to the public. Finally, since damage cases caused by similar medical practices by non-medical personnel, national management and supervision for similar medical practices should be reinforced. | 법학 | null | kci_detailed_000160.xml | |||
ART001408192 | oai_dc | 연명치료 중단의 입법화 방안에 관한 연구 - 성년후견제도의 도입과 관련하여- | A Study on the Method of Legislation on Withholding or Withdrawing of LST -In relation to the introduction of adult guardianship- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이은영(이화여자대학교)"
] | It is the so-called Shinchon Severance Hospital Case brought to an end by the decision of the Supreme Court that opened the real discourse of withholding or withdrawing of LST(Life-Sustaining Treatment) in the legal profession as well as medical profession in Korea. Everyone has sympathy with the validity and necessity of legal regulation on withdrawing-including withholding-of LST save the requirements & procedure of withdrawing of LST.
In this situation, the legislative bill of amendment to the Korean Civil Law introducing of adult guardianship was pre-announced by the Ministry of Justice on September 18th 2009. The adult guardianship is a guardianship system that supports an mentally handicapped adult to deal with his affairs by support of a guardian. The object of adult guardianship includes affairs of body or well-being as well as property of adult wards. In particular, affairs of medical matters are of importance in the duty and authority of adult guardians. So, the introduction of adult guardianship is of much importance de lege lata as well as de lege ferena in the discussion of withdrawing of LST as a medical treatment.
Since the legislation on withdrawing of LST intents to protect the right of death with dignity on the basis of patients' autonomy, the ratio legis of withdrawing of LST is variant from that of adult guardianship. In this context, it seems reasonable to legislate the withdrawing of LST separately from the adult guardianship. In the meantime, the adult guardianship of the legislative bill of amendment to the Korean Civil Law is related to the withdrawing of LST, since the main purpose of adult guardianship is to protect patients' quality of lives and to regulate guardianship contracts based on patients' autonomy. In that context, it seems reasonable to incorporate the legislation of withdrawing of LST into the adult guardianship system.
In the latter case, it is not easy to adopt the withdrawing of LST into the legislative bill of the Korean Civil Law for the bill is pre-announced already as previously stated. However, the legislation of withdrawing of LST is not inferior to the legislation of adult guardianship as a matter of urgency. Moreover, it is likely that the legislative bill of Amendment to the Korean Civil Law generates discrepancies in interpretation of the requirements & procedure of withdrawing of LST as the amended German Civil Law did. In short, it is desirable for the legislator to revise the legislative bill despite delay. | 법학 | null | kci_detailed_000160.xml | |||
ART001408211 | oai_dc | 병원사업에 있어서 “필수유지업무”에 관한 법리적 검토 | Legal review on essential business of hospital business | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박경춘(대구지방경찰청)"
] | This paper is to discuss essential business of hospital business. While the labor world and ILO made continuous recommendation for improvements towards the compulsory arbitration system along with the controversy over unconstitutionality of the system, the Constitutional Court ruled that the system is constitutional on December 23, 1996(90hunba19) and on May 15, 2003 (2001hunga31). Despite this decision from the Constitutional Court, there has been much controversy over whether the compulsory arbitration system infringes the rights of collective action against the principle of trade union & labor relations adjustment which allows Commissioner of the Labor Relations Commission to decide on submission of arbitration by virtue of his/her authority in case where industrial disputes take place in the essential public-service businesses. The revision on the above provision was closely examined from the year 2003 and an agreement was made on the abolition of the compulsory arbitration system and the introduction of essential business with a grand compromise among labor unions, employers and the government on September 11, 2006 followed by revision(Essential business system enacted on January 1, 2008) of the Trade Union & Labor Relations Adjustment Act on December 30 in the same year. Accordingly, in order to perform the essential business, parties to labor relations must have an agreement or obtain a decision by the Labor Relations Commission before taking industrial actions. This paper firstly examined the concept of essential public-service businesses and essential business, legal meaning of essential business, procedures for making agreement and decision and legal effects. Secondly it intensively explored a theory against the principle of the legality which was raised from some part of society. In other words, it is claimed that a theory against the principle of the legality is not consistent with the rule of legislation and some abstract wording is against void for vagueness doctrine because part of crime constitution requirements is delegated to the Presidential Decree or to consultation among parties to labor relations. But analysis on the rule of legislation and void for vagueness doctrine reflected in the decision by the Constitutional Court led that argument for a theory against the principle of the legality is not reasonable. Close examination was done on a formal act of essential business agreement and necessity of prior agreement before submission of decision to the Labor Relations Commission which might have difficulties in performing work. In addition, an example agreement on hospital essential business is attached to help you understand this paper better. | 법학 | null | kci_detailed_000160.xml | |||
ART001408212 | oai_dc | 독일의 의료분쟁과 대체적 분쟁해결방안(ADR) - 독일 의료중재원과 의료감정위원회를 중심으로- | Eine Studie über Ärztliche Konflikte in Deutschland und die alternative Beilegung von Rechtsstreitigkeiten - Deutsche Schlichtungsstellen und Gutachterkommission- | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"남준희(전북대학교)"
] | ennzeichnend für die ärztlichen Tätigkeiten, wenn Konflikte in medikamentösen Behandlungen auftreten, passiert es oft, dass es wegen unnötigen Missverständnissen oder Mangel an Verständnis zwischen Arzt und Patient als extremes Phänomen zum impulsiven Strafprozess oder physischer Gewalt von Seite des Patienten kommt. In diesem Falle verteidigt sich der Arzt mit Schutzbehandlung und Behandlungsablehnung um die Folgen der ärztlichen Behandlung zu entweichen. Es ist dadurch auf beiden Seiten, Arzt und Patient, eine schwierige Sache. Denn der Versuch solche Fälle in Konflikten durch Zivilklage zu klären, ist die Beweisführung des Patienten und die dadurch in Länge gezogene Anklage meist durch die ärztliche Fachlichkeit und Behutsamkeit nicht wirklich möglich.
Infolgedessen ist es nötig alternative Streitbeilegungsmethoden wie Schlichtung, Regelung oder Vermittelung einzuführen, anstatt von Gerichtsverfahren.
Konflikte in einer ärztlichen Behandlung sind für den Patienten und auch für den Arzt eine Plage, denn physischer und geistiger Schaden wird dadurch verursacht. So ist eine schnelle Einführung vertrauenswürdiger Methoden in diesem Bereich notwendiger als in anderen.
In diesem Aufsatz wird eine mögliche Einführung von einer passenden alternativen Beilegung von Rechtsstreitigkeiten in Südkorea und ein Plan zur Aktivierung von dieser vorgeführt.
Derzeitig wird in Deutschland als Alternative für Anklagen in den jeweiligen Bundesländern die von den Ärztevereinen erstellten und beaufsichtigten Schlichtungsstellen und Gutachterkommission in Rat genommen. Schließlich sollten wir aufgrund der vorliegenden Fakten und die Vor-und Nachteile dieser Schlichtungsmethoden auffassen und als Vorbild unserer anwenden und versuchen diese in Aktion zu bringen. | 법학 | null | kci_detailed_000160.xml | |||
ART001408164 | oai_dc | 최근 10년 보건의료법 환경 및 건강보험법정책의 변화 | The Changes in the Public Health Laws and in the Legal Policies of the National Health Insurance over the Past Decade | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김운묵(건강보험심사평가원 심사평가정책연구소 심사평가연구실장)"
] | Korea has gained the much more performances in the fields of pubic health laws and related policies on the basis of the substantial economic achievements. In 1977, the social medical insurance was established for companies with more than 500 employees, and in 1989, Korea successfully achieved the national medical insurance system covering the total population within only 12 years beginning with multiple insurers. There remained some problems, however, to be improved such as both the low level of contribution rates and benefit packages due to the inefficiency in utilizing limited medical resources.
In 2000, all insurers were unified into a single insurer(National Health Insurance Corporation), and special independent Health Insurance Review & Assessment Service(HIRA) was also established. From the origin of medical insurance system in 1977, the Korean reimbursement system has been fee-for-service system, and after the establishment of HIRA, it has been providing objective and expert medical cost review services and health quality assessment services. | 법학 | null | kci_detailed_000160.xml | |||
ART001408184 | oai_dc | 의료보험체계에서 이념의 갈등과 조화 - 의료보험에서 경쟁의 억제와 유인- | Die Auseinandersetzung und Harmonie von unterschiedlichen Ideen im Krankenversicherungssystem | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김나경(성신여자대학교)"
] | Im koreanischen Gesundheitsversicherungssystem spielt die soziale Solidarität Hauptrolle bei unterschiedlichen gesundheitspolitischen Entscheidungen. Daher wird manchmal vernachlässigt, dass auch die Qualitätsverbesserung der Medizin und der Umfang der von der Krankenversicherung unterstützten medizinischen Leistungen wichtige Elemente der Krankenversciehrung sind. Um die letztere zwei Ideologien zu verwirklichen, soll insbesondere das Prinzip der Konkurrenz funktionieren können. Aber im koreanischen System hat die Konkurrenz fast gar kein Platz für sich. Auch das deutsche GKV(Gesetzliche Krankenversicherung)-system versucht die Sozialversicherung zu sein. Aber den deutschen Krankenversicherungssystem sieht es-speziell mit dem Vergleich vom Koreanischen- zumindest viele unterschiedliche Funktionssysteme immanent zu sein. Zum einen tendiert die Einführung des Gesundheitsfonds und vom Einheitlichen Beitragssatz die Sozialsolidarität zu verstärken. Zum anderen tragen aber die Systeme von Zusatzbeitrag, Prämien und Wahltarife dazu bei, bessere Qualität der medizischen Leistungen zu garantieren und die Präferenz von Patienten ernst zu nehmen. Es ist zwar nicht einfach vorauszusagen, zu welchen Ergebnissen diese Elementen führen. Aber die Funktion der unterscheidlichen Elementen, die die Konkurrenz motivieren können, zeigen schon viele Andeutungen für die Veränderung des korenischen Systems. | 법학 | null | kci_detailed_000160.xml | |||
ART001350971 | oai_dc | 지정토론문 : 출생 전 생명에 관한 형사법적 고찰 | {
"journal_name": "대한의료법학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정웅석(서경대학교)"
] | 법학 | null | kci_detailed_000160.xml |
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