의사의 설명의무에 관한 연구

Abstract

In case of a doctor’s medical malpractice, the patient can demand the compensations for damages in a civil case and charge with a crime for the doctor. In civil case are there two types, the one is the default on an obligation and the other one is the tort liability. Doctor’s medical malpractice does not include only diagnosis and curing.

A doctor makes the invasion as medical acts to diagnose and cure diseases for a patient. But the invasion has to be acted after the doctor receives the agreement or approval of the patient. If not, the invasion as medical acts the doctor made is illegal.

A doctor has to give the enough explanations of the disease, symptoms, curing, etcetera, for a patient to understand so that the patient can agree or approve the medical acts to himself or herself. If the doctor acts without the agreement or approval of the patient by negligent or not-enough explanations, the doctor may be claimed on the compensations for the damages, the doctor has not faulted on the medical acts, though.

It is “Explanation Duty of a Doctor” that a doctor has to give the explanations of the important things such as disease, symptoms, curing, the needs, prognosis, riskiness, side effects, etcetera, for a patient to make a decision and a doctor has to receive the agreement or approval of the medical acts from a patient. Hence, a patient can make a decision to get the medical act or not, by the Explanation Duty of a Doctor.

It is called “Violence of Explanation Duty of a Doctor”, in case a doctor is negligent or not-enough for the explanations. In precedents, the doctor is illegal for the medical acts, because the doctor invades the patient’s right of approval, even if the doctor did not mistake in the medical acts and nothing was wrong medically.

In this way, this study describes theories and precedents of the Explanation Duty of a Doctor in some countries in chapter 2. Chapter 3 explains the types, the scope, the execution and the exemption of the Explanation Duty of a Doctor as the contents. Chapter 4 discusses the default on an obligation and an illegal act, the burden of proof for damages and the appropriateness of the parties based on the burden of proof for damages of the Explanation Duty of a Doctor. Lastly, chapter 5 draws the conclusion of this study.