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A Criminal Legal Study in the Protecting the Right of Surgical Patients - Self-Determination of Patients -
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수술환자의 권리보호에 대한 형사법적 쟁점 - 환자의 자기결정권을 중심으로 -

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Type
Academic journal
Author
Yoo, Jae Geun (춘천지방검찰청 원주지청)
Journal
The Korean Society Of Law And Medicine 의료법학 의료법학 제16권 제2호 KCI Accredited Journals
Published
2015.1
Pages
3 - 26 (24page)

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A Criminal Legal Study in the Protecting the Right of Surgical Patients - Self-Determination of Patients -
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Recently, Practicing of ghost surgery and duty of informed consent of doctors have become a big issue in the medical dispute and lawsuits. The ground of admitting the informed consent and the agreement(self-determination of patients) can be based on the dignity of man and the right to pursue his happiness guaranteed under Article 10 of the constitution in theory. However there are no explicit legal regulations on the duty of the informed consent and there is no substantive legal enactment on the informed consent, but there is a collision between self-determination of patients and the discretionary power of doctors. If the discretionary power on the duty of the informed consent was extended it may result in the infringement of the right of surgical patients, so called arbitrary medical treatment. Relating to this issue, New Jersey Supreme Court held that a patient has the right to determine not only whether surgery is to be performed on him, but also who shall perform it. Moreover it held that a surgeon who operates without the patient's consent engages in the unauthorized touching of another and, thus, commits a battery'. But there are no ghost surgery cases adopting battery theory in Korea, and professional negligence has been considered rather than the battery, regarding an absence of hostile intent to injure patient. Supreme Court of Korea held that a doctor who operates a medical procedure without the patient's valid prior consent based on wrong diagnosis commits professional negligence resulting in injury, and the patient's invalid consent do not preclude wrongfulness'. However, if a health care provider conducts a completely non-consensual treatment or substitute surgeon without consent, the action should be plead in battery, not negligence, but if a health care provider violate his duty of care in obtaining the consent of the patient by failing to disclosure all relevant information (risks) that a reasonable person would deem significant in making a decision to have the procedure, the action should be plead in negligence, not battery. Therefore, the scope of patients' self-determination can be protected by stating clearly the scope of the duty of the informed consent and the exemption of the informed consent legislatively, it is considered that it is valid to legislate the limitation of the discretionary power.
#환자의 자기결정권 #전단적 의료행위 #대리수술 #설명의무위반

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References (9)

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김나경 / 2007 / 전단적 의료행위의 형법이론의 구성 / 형사법연구 19(2):87~110 dbpia 김성돈 / 2013 / 의사의 설명의무위반의 효과와 가정적 승낙의 법리(판례평석) / 형사판례연구 21:27~63 google schola 김영환 / 1994 / 형사판례연구 2 google schola 신동일 / 2003 / 형법상 의료행위와 ‘설명의무’ / 형사정책연구 14(1):221~242 dbpia 안법영 / 2013 / 설명의무와 지도의무 — 설명의무에 관한 최근 판례의 동향 — / 안암법학 (40):125~161 google schola

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