A Study On The Limitations Of Criminal Responsibility Of Medical Professionals In Medical Accidents: Focusing On Recent Decisions Of Korean Courts Regarding Professional Negligence And Causal Relations

• Law Firm: DR & AJU LLC
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Criminal Law, Personal Injury, Professional Negligence, Crime
• Author: Hyo Jung Joo
• Published date: 15 February 2023

1. Introduction: Background

Following the growing public interest and knowledge in health and medical care, the number of medical malpractice lawsuits has drastically increased. Accordingly, judicial statistics also show that a larger percentage of medical professionals have been ordered to pay compensation for civil damages caused by medical malpractice or received a criminal sentence for professional negligence resulting in injury or death. For some accidents that resulted in death, the medical professionals were arrested during the investigation or sentenced to prison.

To address this issue, there have been emerging demands stemming from the Korean Medical Association for the "legislation of a special act to exempt medical professionals from criminal punishments except in circumstances of intentional medical negligence or unapproved medical practices." One of the major grounds for this movement is that (i) the execution of medical practices fundamentally involves risks for lives and bodies, thereby holding medical professionals criminally liable for undesirable outcomes, such as death, caused by force majeure may discourage major medical practices with high accident-risks. Another ground is that (ii) it is extremely rare for a doctor to be prosecuted for malpractice in other countries, including the United States.

Amidst such discussions, in actual practice, victims of medical accidents often try to obtain evidence to prove medical malpractice by filing both civil claims for damages and criminal complaints. As a result, most medical disputes in Korea tend to develop into criminal cases. Especially if the accident resulted in death, it has become very difficult for medical professionals to avoid criminal prosecution.

For such cases, countries have varying standards to the extent of which it recognizes criminal culpability in medical professionals. This article will explain the two requirements for Korean courts to recognize criminal liability in medical malpractices, "professional negligence," and "causal relations," based on the case of newborn deaths at a university medical center, which raised significant social concerns in South Korea, and compare these requirements to that of the U.S. court.

2. Requirements to Determine Professional Negligence (Breach of Duty of Care) and Causal Relations in Professional Negligence Resulting in Injury or Death under the Criminal Act of South Korea

1) Stance of South Korean Court

• (1) Requirements for Determining "Professional Negligence"

According to the established precedents of the Supreme Court of Korea, in the case of a medical accident resulting in injury or death to a patient, the acknowledgment of professional negligence - a violation of the duty of care required for medical professionals' work - shall be determined with regards to whether the physicians were able to foresee and prevent the result in question.¹ The standard of care for determining negligence shall be the degree of prudence and caution provided by the average worker when executing the same work and duties. Other considerations shall include the general standards of medical practices at the time, the medical environment and conditions, the special characteristics of the medical practice, etc.

However, the Court also recognizes the execution of discretionary power in medical practice, decreeing that "when making clinical decisions, physicians have a wide discretionary space in choosing the most appropriate decision based on their professional knowledge, the state of medical practices, and his/her own knowledge and experience. Regardless of the outcome of the medical treatment, it cannot be said that only one type of treatment is justifiable and conducting any other treatment constitutes an act of negligence unless it deviates from a reasonable scope."² That is to say, if a physician chooses to perform a medical treatment that he/she believes is appropriate in a given circumstance after thoroughly considering the necessary measures and risks associated with the treatment, the Court considers this choice of treatment to be within the physician's discretionary power and does not recognize criminal negligence, unless the medical treatment in question is considered...