의료과오의 계약법적 구성

Abstract

The Contractual Construction of the Malpractice Song, Oh-Sik* There are many issues related to the civil liability of the malpractice. In the past, relation between physician and patient was considered not as the contractual relation but as the personal fiduciary one. Accordingly, the prevail opinion and the precedent in Korea have taken the tort liability theory in the case of the doctor's negligence However, it is common that contractual relation exists when physician provides medical service. Moreover, patients have recognized the relation 'doctor-patient' as the relation 'health care provider-heath care consumer', insist that they have a fair and proper right because of malpractice. The medical service contract is a compensation and bilateral contract between hospital/doctor and patient/agency. There are four kind of theory considering legal character of the medical service contract: employment contract, mandate contract, work contract, non typical contract. Having taken notice of 'a reasonable care', the prevail opinion have taken the theory of mandate contract. But I consider the medical service contract as the independent employment contract based on a compensation. he medical service contract can be considered as a consumer contract between health care provider and health care consumer, too. The contract option has the major advantage that a contract is based on party autonomy. This is a natural habitat for such patients' rights as the right to information, to consent and to access to medical records. The main performances in medical contract are the health care service and the fee. Besides, physicians are now obliged to inform the patient cleary about the proposed examination and treatment about developments concerning examination, treatment and the condition of the patient's health. Physicians has a duty to keep the record, to keep patients' privacy. Patients has a duty to cooperate with a doctor. One of the most important issues is the burden of proof of negligence. The scholars and Korean Supreme Court referring to 'the obligation moyens' of medical obligation adopt the obligation moyens theory and admit the plaintiff to take the burden of proof. The doctor have to prove the fact of negligence according to KBGB §390. Because the legislator regulated the negligence as a requirement of right hinderance. In 1995, Netherland enacted the medical service contract into the Civil Code. Likewise, the legislation of the Act of the medical service contract can be considered. However, though we enact the Act of the medical service contract, the enactment have to be exercised after the deep and broad discussion about specific contents of the medical service contract and patient’s right and duty and the accumulation of the precedent.