무수혈과 관련된 의료과실치사죄

Abstract

This paper addresses a case of accidental homicide on business by medical negligence. In this case, it is highly probable that there is a large amount of bleeding in the surgery the defendant performed on the victim. The victim requires an artificial hip joint replacement surgery without blood transfusion. The victim's status was examined through X-ray pictures. As a result, the victim’s condition was confirmed that the degree of adhesions between femoral head and pelvis was severe, bones was dissolved by tuberculosis, skin scars and muscle adhesions around the hips was serious. In this situation, the defendant entered the region between victim’s right thigh and necrotic femoral head and examined the diseased part. Then the defendant confirmed that the adhesions of the femur and its surrounding muscle tissue were much more severe than expected. Therefore, an artificial hip joint replacement surgery on the victim would cause a higher probability of massive hemorrhaging than originally expected. Nevertheless, the defendant acted on victim without interrupting the procedure. As a result, the victim’s artery in the vicinity of the femur ruptured and a massive hemorrhage amounting to more than 3,500cc occurred. In general, these sudden massive hemorrhage cause the disseminated intravascular coagulation disorder. The victim died from failing to control this disorder. In light of these facts, it was admitted that the victim appeared to have died from medical negligence rather than a non-blood transfusion surgery. Because the artificial hip joint replacement surgery for the victim expected a high possibility of massive bleeding from the outset and the expected probability could have been recognized in the process of surgery, so the defendant should have stopped or not performed the operation. However, the defendant proceeded with the surgery without interruption and victim died due to the disseminated intravascular coagulation and coagulation disorder which was caused by massive bleeding. The defendant breached the duty of care under the Medical Act and defendant’s violation constitutes an accidental homicide on business under Article 268 of the Criminal Code. On the other hand, in this case, victim’s right of self-determination or victim's consent seems to be not directly connected to the preclusion of illegality on the accidental homicide on business. Though the defendant conducted the operation on the continuous requests for a non-blood transfusion surgery, illegality should not be excluded by the victim's consent because the victim would not consent to the bloodless surgery, if the victim was well informed about the higher risk of death due to it.