2010년 주요 의료 판결 분석

다국어 초록 (Multilingual Abstract)

Verdicts related to major medical litigation given by the Seoul Central District Court, the Seoul High Court and the Supreme Court in 2010 were analyzed. It’s shown that in cases of the medical negligence regarding the occurrence of neonatal cerebral palsy, the plaintiff claims were dismissed using criteria proposed by associations of Obstetrics and Gynecology and Pediatrics in US, and thereof the burden of plaintiffs to prove the medical negligence has increased. In addition, in case of that the expected survival period of infants gets longer, payments for treatment and nursing after survival period determined by judges are made and it was judged to compensate it as a periodical indemnity. In case for the explanation obligation the most frequently mentioned in the medical litigation, in addition to cases of invoking the existing theory of explanation obligation, verdicts to mention the instructions of theory regarding instruction explanation obligation and the possibility of compensation for damages on property are given. Particularly, in cases for a liability of reparation by exaggerating the effects and not disclosing the risks related to treatment with stem cells, even if the treatment not approved by Food and Drug Administration is in violation of the Pharmaceutical Affairs Law, it’s not illegal as violation in Pharmaceutical Affairs Law itself. But there is a certain verdict to present the possibility of an extension of the theory of explanation obligation by acknowledging the liability of reparation caused by illegal acts with no explanations of effects and risks of treatment with stem cell by doctors and pharmaceutical companies. In an incident in which a mental patient fell and died through the opened door of the roof at the hospital, a liability of reparation was acknowledged due to defects in structure installation management and this verdict drew an attention since the overall management responsibility about patients including structures was acknowledged to the hospital besides the obligations on medical practice. In case of the verdict without giving the opportunity to state the opinion with respect to the main legal issues, the responsibility of the court was emphasized since the court did not fulfill the explanation obligations. There were some cases in which payments for nursing and caring to a patient in vegetative state during the plastic surgery was admitted. However, in dental-related incidents, the proportion of cases in which plaintiff won was low since the difficulty of proving may be reflected. In the area of administrative litigation, unlike the existing position regarding arbitrary medical charge cover collected from patients in hospital, the verdict to admit the legitimacy of collection of medical treatment was given and attracted the attention of people. Verdict in which the expression related to medical advertisement was not exaggerated disposed the original verdict and pointed out the problem of excessive regulations on medical advertisement. The effort to analyze the trend of verdicts of court through reviewing the decisions and to organize should be continued, but the full decision should be disclosed as a base, and people and systems to enable the all time monitoring should be prepared.

목차 (Table of Contents)

• I. 머리말
• 1. 들어가며
• 2. 대상 판결 선정
• II. 2010년 주요 의료 판결
• 1. 대법원 2010. 1. 14. 선고 2009다59558 판결3) - 산부인과 뇌성마비 사례
• 2. 대법원 2010. 6. 24. 선고 2009다61612, 2009다61629 판결 - 건강보험으로 치료받은 경우 손해배상액 산정방법
• 3. 서울고등법원 2010. 9. 2. 선고 2009나84372 판결
• 4. 서울중앙지방법원 2010. 1. 21. 선고 2008가단130458 판결
• 5. 대법원 2010. 10. 14. 선고 2007다3162 판결-줄기세포 시술 효과 과장 사건
• 6. 대법원 2010. 4. 29. 선고 2009다101343 판결
• 7. 대법원 2010. 11. 25. 선고 2010다57817
• 8. 서울고등법원 2010. 5. 13. 선고 2009나17587 판결 - 성형외과 사례
• 9. 서울중앙지방법원 2010가합39760 판결 - 정기금배상명령판결
• 10. 서울행정법원 2009.10.29.선고2008구합9522
• 11. 대법원 2010.3.25. 선고 2009두21345 치과의사면허자격정지 및 경고처분취소 - 의료광고 규제 관련 사건
• III. 종합
• 1. 판결의 경향
• 2. 문제점과 개선방향
• 참고문헌
• ABSTRACT

참고문헌 (Reference)

1 이정선, "투신 사고와 자살 사이의 상당인과관계 인정과 손해배상의 범위에 대한 소고 - 대법원 2007. 1. 11. 선고 2005다44015 판결을 중심으로-" 대한의료법학회 9 (9): 165-196, 2008

2 "최신의료판례" 동림사 2003

3 현두륜, "의료행정소송의 실무와 판례: 임의비급여 사례를 중심으로, in 의료문제를 생각하는 변호사 모임 자료집" 2010

4 김만오, "의료과오에 관한 판례의 동향" 한국민사법학회 (27) : 299-347, 2005

5 박영호, "손해배상액 산정에 관한 최근 10년간 판례의 동향(下)" 대한의료법학회 11 (11): 397-445, 2010

6 김민규, "설명의무 위반과 위자료" 부산외국어대학교 비교법연구소 13 : 2002

7 서영현, "미용성형시술에 관한 판례의 동향과 분석" 고려대학교 법무대학원 2011