의료과실과 인과관계 및 객관적 귀속

Abstract

Even though the supreme court uses the term ‘adequacy’ during the course of determining the causality of the negligent person, it does not actually use ‘adequacy-theory’ as a practical standard of judgement. For example, the causalities of the two medical malpractice cases, [Wisdom-Tooth Case] and [Large-Fetus Case], are all acknowledged when examined by the ‘adequacy-theory’. However, the supreme court is denying their causalities because the consequence avoidability cannot be secured even with the lawful alternative action. This exactly coincides with the standard of the objective imputation theory. Therefore, it can be said that the supreme court is invoking the standard of objective imputation theory rather than that of ‘adequacy-theory’. The conclusion from the two medical malpractice cases were that their causalities are not acknowledged. On the other hand, the causal connection was acknowledged in the [Fuse-Cork Case #1], a general negligence case, where the negligent action of the previous tenant, who removed a fuse-cork without taking any follow-up measures except closingthe external valve resulted in the death of a subsequent tenant due to an explosion caused by the leaked gas from the external valve that was opened by someone else. However in this case, we can conclude that the consequence avoidability could not have been achieved even with the lawful alternative action: looking into [Fuse-Cork Case #2], the previous tenant requested the gas supplier for appropriate measures while removing the gas stove where the supplier directedthe tenant to just cut-off and remove the stove. Since an explosion occurred as the result of this, the legal consequence also might not have been avoided even if a lawful alternative action was taken in [Fuse-Cork Case #1]. It might seem as if the supreme court is discriminating between the medical malpractice and the general negligence cases. This problem should be solved by crystalizing the standard of judgement for causality based on the objective imputation theory so it is capable of solving such cases. When predicting whether the consequence avoidability is achieved by a lawful alternative action, the alternatives should be limited just to the violation of obligation by the accused person. Especially, it would be incorrect to assume the causal connexion by inputting the possibility of the third person committing illegal acts. Accordingly, substituting the violation of obligation of the gas supplier, who did not take appropriate measures in [Fuse-Cork Case], as an alternative action would also be inappropriate. Likewise, by crystalizing the standard of the objective imputation theory, the validity of the conclusion can be enhanced which can lead to an indiscrimination between the medical malpractice and the general negligence cases by the supreme court. In case of medical malpractices, however, because the people who are specialized in legal study are not usually familiar with the medical practices, it would be difficult for them to determine whether the consequence avoidability is achieved. This leads people to be uncertain about the consequence avoidability and this uncertainty makes them to think in favor of the accused person when confirming the ultimate fact(in dubio pro reo). In the end, this would be why the possibility for favoring medical practitioners is open when determining the causal connection in medical malpractice cases.