의사의 설명의무 위반과 손해배상책임의 범위- 대법원 2007. 5. 31. 선고 2005다5867 판결 -

Abstract

With the recent increasing number of lawsuits against the violation of the duty of care by doctors, the lawsuit against the violation of the duty of explanation is also increasing. Patient's autonomous decision is affected by doctor's violation of the duty of explanation. As a result,if even patient's life and body are affected, doctor's liability for damages due to illegal act or default of obligation is acknowledged in relation to the damages occurred, despite the medical legitimacy of doctor's medical practice. Doctor's appropriate explanation is primarily toward the guaranteeing of patient's self-determination, but ultimately aims to protect patient's life and body. Therefore, the view that we must acknowledge doctor's compensation of all damages because doctor's all medical treatments are considered unlawful due to doctor's violation of the duty of explanation is not reasonable. Accordingly, it is advisable to determine the scope of compensation for damages caused by the violation of the duty of explanation, by considering the degree of violation of the duty of explanation, like a court did. On the other hand, the court requires the violation of the duty of explanation enough to be identified with the violation of the duty of care and the causal relationship between the violation of the duty of explanation and its outcome in ordering all compensations for damages. However, if we compare both views from the same perspective although both views need to be judged by the other standards, it's contradictory. In other words, even if a doctor performed medically justifiable treatment and did not affect patient's physical benefit, combining the duty of explanation with the physical disbenefit has room to review.