Korean Medical Malpractice lawsuits are often compared to “Beating one’s head against the wall,” since Korean medical malpractice lawsuit are, typically, difficult for patients to prevail in. In medical malpractice cases, in Korea, and in most developed jurisdictions, the plaintiff has the duty to establish, among other things, a nexus between the alleged injury and the actions or in actions of the doctor. Proving this nexus is, often, difficult because of the apprehension of expert witnesses (doctors) to step on the toes of other doctors, cost of obtaining neutral experts and lack of adequate legal resources for injured patients.
One valid means of obtaining a remedy, in a cost effective manner, is via Korea’s Medical Dispute Medication & Arbitration Agency (“KMDMA”). However, under the prior Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes (abbreviated as “Medical Dispute Mediation Act”) the a plaintiff was, only, able to commence an investigation by the KMDMA when a defendant agreed to proceed via the mediation process.
Shin Hae-cheol Medical Malpractice Act
On October 17, 2014, a well-known Korean singer, Shin Hae-cheol, underwent surgery for intestinal stenosis. Around a week after the surgery she died. The doctor performed surgery on the patient without the consent of the patient or the family of the patient. In addition, the patient complained of major post-operative pain, but the defendant-doctor noted that this was a common phenomenon after surgery. The doctor took no followup measures to determine the cause of the pain and the patient died. The BaliBali (Quick Quick) attitude may have been a significant reason for the patients death.
Based, primarily, on the media coverage of this case, the Medical Dispute Mediation Act was amended to allow medical accident dispute settlement procedures to be initiated even if hospitals/doctors are unwilling to consent (however – this is, only, the case in the most serious of medical incidents). The amendment is, typically, referred to as the “Shin Hae-cheol Act.”
According to the KMDMA, medical dispute mediation filings over the past five years (2013 to 2017) increased from 1,138 cases to 2,420 cases in 2017. We find, in many cases, petitions to the KMDMA is a useful means of obtaining damages for victims of medical malpractice cases in Korea.
ACT ON REMEDIES FOR INJURIES FROM MEDICAL MALPRACTICE AND MEDIATION OF MEDICAL DISPUTES
Article 27 (Petitions for Mediation)
(1) A party to a medical dispute (hereinafter referred to as “dispute”) or his/her representative may file a petition for the mediation of the dispute, with the Mediation and Arbitration Agency, as prescribed by Ordinance of the Ministry for Health and Welfare.
(8) Mediation proceedings shall commence when the respondent on whom a mediation petition is served pursuant to paragraph (4) notifies the Mediation and Arbitration Agency of his/her intention to accede to mediation. If the respondent fails to notify the Mediation and Arbitration Agency of his/her intention to accede to mediation within 14 days from the day on which the petition for mediation is served, the president shall reject such petition for mediation.
(9) Notwithstanding paragraph (8), the president shall commence the procedures for mediation without delay when medical malpractice for which a petition for mediation has been filed under paragraph (1) results in death or any of the following conditions. In such cases, the date the respondent is served with the petition for mediation shall be deemed the commencement date of the mediation procedures:
1. Unconsciousness for at least one month;
2. Conditions prescribed by Presidential Decree among those falling under the disability grade I defined in Article 2 of the Act on Welfare of Persons with Disabilities.
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