무수혈수술과 자기결정권에 관한 소고- 대법원 2014.6.26. 선고 2009도14407 판결을 중심으로 -

Abstract

Recently, the patient who was Jehovah’s Witness died from excessive bleeding whenthe patient was having surgery without blood transfusion. The Supreme Court deniesthe punishment of the surgeon who performed the surgery without blood transfusionbased on the patient’s self-determination on the refusal of the blood transfusion. Andthe Supreme Court assesses that the death of the patient was the result of the right ofthe self-determination. Furthermore, the Supreme Court explains the conditions andterms to validate the patient’s right of the self-determination. Doctors need to explain to the concerned patient or patient’s legal representative aboutsymptoms of the disease, treatment methods and the necessity of the treatment, andconcomitant risks at the time of treatment considering the then health care level. Thus,the concerned patient can compare and review the necessity and the risk of the treatmentso that the patient can determine whether to receive the medical treatment or not. Also,denying the certain treatment method does not mean the suicidal purpose, and does notviolate the third party’s benefit and the protection of the law, and when there is especialcircumstance that exercising the right of self-determination that is based on theconstitutional value which is equalized with the life itself, then exercising patient’s rightof self-determination can be respected. To evaluate the exercising right of self-determination, such as refusal of the bloodtransfusion, is valid, patient’s age, intellectual ability, family relation and the background,details, and purpose of the refusal of the blood transfusion should be considered. Also,the intent on the refusal of the blood transfusion is whether temporary or based on longlasting religious and conscientious belief should be considered. In addition, whether patient’s refusal of blood transfusion can be evaluated as an actual suicidal purpose andrefusing blood transfusion can violate the third party’s interest should be all consideredas well.