의료과오에 있어서 인과관계에 관한 판례의 고찰

Abstract

When preceding and succeeding factor constitute cause and result, it is generally called factual causation. However, to lodge a compensation claim in the Civil Code, not only factual causation but legal causation based on that factual causation is also required. Thus, in analyzing the existence of legal causation, factual causation has to be proved beforehand. Generally, the existence of factual causation in contract liability or tort cases is rather more explicit. However, in a medical malpractice case, establishing factual causation is fairly more complicated due to the inherent nature of medical treatment. In fact, establishment of factual causation usually settles the issues of liability. Therefore, factual causation is what matters in a medical malpractice case. The precedents have suggested that the courts have been trying to alleviate the difficulties for the patients in proving the causation in medical malpractice cases. In many instances, the courts have presumed the existence of causation based on evidentiary facts which include probability of chance, lack of alternative cause, and time proximity. When there is one or multiple number of these facts, the courts have usually admitted the existence of causation as long as there is no other evidentiary fact that is in direct conflict. Since causation is presumed based on the evidentiary facts,the burden of proof for the plaintiff is relieved in a way that the patient does not have to establish a specific causal link between the medical treatment in question and the injury incurred. However, the patient still has much burden with regard to proving the negligence. In the past,the courts have also tried to reduce such difficulty by presenting a new negligence standard that reads, “negligence can be presumed if there is a negligent act based on the eyes of the lay person.”However, that standard itself is ambiguous in its terms. Hence, more elaborated interpretation of that standard needs to be provided. In addition to that, even in an instance where causation is established based on evidentiary facts, a more explicit standard as to how much of probability is needed to presume such causation is required.