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Legal problems concerning medical accidents (FAQ)

How medical disputes are handled under the current laws (Classification of ways of medical dispute settlement)

• Basic reality
  • In cases of medical disputes, medical institutions and patients make an attempt to reach an agreement, if this fails patients often start a civil proceeding or even submit a criminal complaint to the police.
  • Civil proceedings take a lot of time and expense, while a criminal complaint submitted to the police is likely to hurt both parties' feelings and lead to a waste of resources, including medical manpower.
  • There is a need for the vigorous codification of Alternative Dispute Resolution (ADR)
    • The best way to negotiate medical disputes is out-of-court, using a mediator or some form of arbitration.
  • Fundamentally it is most important to carry out relevant educational sessions, to maintain self-regulated control and management of doctors/nurses, to operate risk reduction systems, and always strive towards prevention.
• Methods of medical dispute resolution under the current laws
  • Court proceedings
    • Civil proceedings
    • Submittal of a criminal complaint to the police for criminal proceedings
  • Out-of-court settlements
    • The civil mediation system under the Civil Mediation Act (through the court)
    • The Arbitration Act (through one-person or plural-person arbitration tribunal)
    • The Korean Consumer Agency (KCA) (through the Fair Trade Commission)
    • The Mediation Committee of the Medical Treatment Examination ) under the Medical Service Act (through the Ministry for Health, Welfare and Family Affairs) (MIHWAF)
  • Others
    • Civil proceedings
    • Submittal of a criminal complaint to the police for criminal proceedings
  • Court proceedings
    • The Council of Arbitration of KMA or various insurance systems which also function as bodies for dispute resolution.

Features of ADR systems and distinctions between them (Overview of major ADR systems)

• The civil mediation system
  • Under the system, the Mediation Committee at the court listens to what disputants have to say, checks relevant evidence, and persuades the parties to compromise and reconcile with each other in consideration of the relevant situation under a simplified procedure.
  • The Civil Mediation Act, which is the basis for the system, covers all disputes under Civil Law and thus is limited as a solution in complicated medical disputes.
  • Particularly when sufficient fact-finding or analysis has not been made from a medical perspective, it is very difficult for parties to reach an agreement.
• The arbitration system (the Arbitration Act)
  • Disputes can be settled promptly by making the arbitration tribunal's ruling final after a proceeding is carried out with disputants present.
  • In order to implement the arbitration system, disputants must consent to arbitration, but it can be difficult for them to consent if they do not have sufficient trust in the arbitrating agency and the agency lacks records and/or reputation of successful arbitration.
  • Unfortunately, it can be difficult to find an arbitration agency with sufficient expertise in medical disputes.
• The Medical Service Examination and Coordination Commission (Mediation Committee Of The Medical Treatment Examination ) under the Medical Service Act
  • The commission was launched under the Medical Service Act and amended in 1981. The main purpose of the commission is to coordinate medical disputes in a just manner before civil proceedings are necessary.
  • The commission is divided centrally which is under the jurisdiction of MIHWAF, and regionally.
• The Korean Consumer Agency (KCA) (the Consumer Fundamental Act)
  • Under the Consumer Protection Act amended in December 1998 (implemented on April 6, 1999), the Consumer Dispute Mediation Committee of the KCA is to handle mediation of medical disputes.
  • Disputes involving small amounts tend to be handled by the KCA. Cases involving amounts of 5 million won or less have a high probability of successful mediation.
• The Korean Medical Mutual Aid Association
  • The KMMAA handles medical accidents involving its members. They provide compensation and consultation to their members and offer assistance in agreements made with patients.
  • As of October 30, 2008, their membership stands at 7,815. Those covered by basic benefits (maximum coverage: 10 million won) come to 4,238 and those covered by compensation benefits (maximum coverage: 30 million won/50 million won/100 million won/200 million won) come to 3,577.
  • Concerning hospital-class compensation benefits, the mutual aid association handles only subscription, with damage assessment and compensation left to the insurance company.

Difference between mediation and arbitration

• "Mediation" refers to a procedure in which the court or another institution persuades disputants to yield to each other in order to reach an amicable agreement.
• "Arbitration" refers to a procedure in which a dispute between individuals is settled by means of an arbitrator's decision outside court.
  • The one-person or plural-person arbitration tribunal's decision made based on disputants' arguments and evidence is final and shall not be contested (i.e. cannot be appealed to an appellate court)
• Basic difference between the two
  When disputants refuse to reach an agreement (or yield to each other), the "mediation" procedure is regarded as "failed," whereas the arbitrator must make a final decision on his/her own.
  • Basically, the "mediation" procedure is a process in which a third party "persuades" disputants to reconcile, while the "arbitration" procedure is a process in which a third party makes a final and independent "judgment," after checking what is right or wrong based on what disputants say.
• Merits and demerits of the two
  • Mediation: Requires disputants' acceptance, thereby disallowing discontent or a sense of unfairness. Failure in mediation may lead to another procedure, including civil proceedings, which means a possible waste of time.
  • Arbitration: The arbitrator makes his/her final decision regardless of whether disputants agree or not. Thus, it is possible to settle a dispute promptly. It avoids the possibility that the loser may feel discontented about the decision.

Under international law, in which country' s court are foreign patients supposed to file their lawsuits pertaining to medical disputes?

• Is there an international court for handling civil proceedings concerning medical disputes?
  • No there is not. Civil proceedings concerning medical disputes should be left to the courts of the respective country.
    • The International Court of Justice, which is an organization handling disputes between countries, with states as disputants, does not involve itself with disputes between individuals.
• International agreement on allocation of jurisdiction between countries concerning cases involving people from two or more countries
  • There is no unified norm concerning allocation of jurisdiction between countries for civil disputes involving people of two or more countries.
    • In 1992, the Hague-based International Court of Justice started making efforts to draft an international convention on such matters at the proposal of the U.S. It made a draft by 1999, which failed to be accepted by the international community.
    • Some European countries reached an agreement concerning the allocation of jurisdiction over court proceedings under the Brussels Convention (1968), the Lugano Convention (1988) and the amendment to the Lugano Convention (2007).
  • In any case, the court's jurisdiction is decided in accordance with each country's laws.
  • According to precedents, jurisdiction over civil proceedings concerning medical accidents involving foreign patients in a medical institution in Korea lies in the Korean court.
    • However, there may be countries in which the legal system recognizes only the jurisdiction of the domestic court or the jurisdiction of both another country's (e.g. Korean) court and the domestic court concerning one and the same case.
• Judgment criteria (i.e. substantive law concerning loss compensation, its scope and methods) concerning medical proceedings involving people of two or more countries
  • It is just that the court actually handling a case judges in accordance with the domestic laws. There is no particular international convention that can apply to medical proceedings involving people of two or more countries.
    • In some specific areas, there are international conventions that can be said to be substantive laws applying to disputes involving people of the signatory countries. (The Hague Protocol of 1955, for example, limits the scope of responsibility of international air carriers,) - There is no such international norm concerning medical proceedings.
  • In the end, matters concerning which country's laws should apply to a certain type of case are decided under a country's domestic laws (e.g. the Private International Law in Korea).
  • Under the Private International Law, the laws of Korea apply in cases of civil proceedings concerning medical accidents involving foreign patients.
• Reference: The ruling made by the home court of the defendant guarantees the efficacy of the enforcement.
  • Some people (i.e. the plaintiffs) claiming compensation relating to a medical accident or an illegal act file the lawsuit in the court of the country in which the medical accident happened rather than in their home court.
  • This occurs because the defendant's property is usually located in their home country and the home court's ruling helps avoid problems associated with the enforcement of the court ruling in another country.

Is it possible to apply another country' s court ruling (e.g. ruling made by a court in the home country of a foreign patient) in Korea?

• Approval and enforcement of court ruling
  • Approval: Refers to a procedure undertaken by a domestic court to formally recognize a foreign court' s ruling.
  • A domestic court' s "ruling on enforcement" is also required for enforcement of a foreign court' s ruling in Korea.
  • The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil And Commercial Matters (1971) established principles concerning the approval of a foreign court' s ruling, but only three countries have ratified it (meaning no efficacy).
  • Korea has ratified no international conventions concerning approval or enforcement of a foreign court' s ruling. - It falls under the jurisdiction of domestic law (i.e. the Civil Proceedings Act) whether a foreign court' s ruling should be approved and enforced.
    • The preparatory draft discussed at the Hague Conference on Private International Law included principles to be applied internationally concerning approval and enforcement of a country' s court ruling.
• Conditions stipulated by domestic laws for approval and enforcement of foreign judgments
  • Conditions for approval (the Civil Proceedings Act, Article 217)
    • 1. The particular court' s international jurisdiction shall be recognized based on the relevant principle under domestic laws or international treaties the country is a signatory of.
    • 2. The losing defendant received (not by conveyance in the form of public notice or a similar way) a written complaint or a similar document and a notice for the date designated for pleadings or an order in a lawful way with sufficient time given for defense or the losing defendant was likely to accept the proceeding even if he/she did not receive it.
    • 3. The recognition of the effectiveness of the ruling shall not be in conflict with customs and traditions adopted in Korea or other social orders.
    • 4. There shall be mutual guarantees.
  • Conditions for the ruling for enforcement (the Civil Execution Act, Articles 26 and 27)
    The following constitutes a reason for inability of ruling for enforcement:
    • 1. When the foreign court' s ruling cannot be verified
    • 2. When the foreign court' s ruling does not meet the requirement of the Civil Proceedings Act, Article 217
• Arbitration awards
  • Korea is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) also known as the New York Convention.
  • In cases involving one of the 144 signatories to the New York Convention, it is possible to have the Convention approve and enforce a foreign arbitral award by submitting the relevant text and arbitration contract documents to the court in the country of enforcement.
• The Korean court refuses to approve and enforce a court ruling ordering punitive damages
  • In its ruling No. 93 Gahap 19069 dated February 10, 1995, the Dongbu Branch of the Seoul District Court said, "Punitive damages are a type of relief method recognized under common law. They are mainly designed for punishment of illegal acts and determent of similar acts imposed in addition to loss compensation in case an egregious intention is found. It is a type of compensation with a punitive nature not recognized under the country' s civil law system, which only recognizes the need for compensation of loss caused by an illegal act. It can run counter to the country' s good public order and customs.
    • However, the foregoing court saw that the Minnesota Court' s ruling in question concerning the aforesaid case did not include an order for punitive damages. The foregoing court ordered the enforcement of the loss compensation within an extent not exceeding half the compensation amount ruled by the Minnesota Court, saying, "We can give our approval only in a limited way, as the amount far exceeding the amount acceptable in this country runs counter to the country' s good public order and customs in consideration of the local Loss Compensation Act."
  • As for precedents in Germany or Japan, they do not recognize punitive damages, saying that they can disturb pubic order.

If disputants accept a court in a specific country as a court of jurisdiction, does it have jurisdiction under any circumstances?

• Validity of consent to jurisdiction
  • International consent to jurisdiction: Refers to a procedure in which parties in legal relations reach an agreement beforehand concerning the court of jurisdiction in case of a future dispute.
  • Concerning the validity of consent to jurisdiction, there is no expressed stipulation in domestic laws. However, precedents in Korea have recognized it in general.
    • There is no precedent found that denies the validity of relevant parties' consent to a domestic court as a court of jurisdiction.
• There are many cases in which consent to a court in a certain country as a court of jurisdiction is not accepted by a court in another country.
  • Even if a domestic court in Korea recognizes its jurisdiction over a specific case under the domestic law system, it does not necessarily rule out the jurisdiction of a court in another country. (There is no way to rule out such a jurisdiction, as courts in each country act under the country' s domestic laws.)
    • Courts in another country will make judgment concerning the jurisdiction in accordance with the country' s own legal system and precedents.
  • There was a case in which a domestic court in Korea denied the validity of relevant parties' consent to a foreign court as a court of jurisdiction, i.e. an international agreement on exclusive jurisdiction. (i.e. the Supreme Court' s ruling No. 96Da20093 dated September 9, 1997; the Supreme Court' s ruling No. 2001Da53349 dated March 25, 2004)
• Trend of court ruling on jurisdiction
  • The current trend in Korea is toward ready acceptance of the validity of an agreement on jurisdiction if the court of jurisdiction is one in Korea, but a very particular attitude is adopted in accepting the validity of an agreement if the court of jurisdiction is one in a foreign country.
    • A similar attitude is taken by courts in foreign countries.

In the event that parties agreed to the ceiling of the loss compensation amount, is it actually accepted in court proceedings?

• Such an agreement on the loss compensation amount is stated as "scheduled loss compensation" in Civil Law, Article 398. Scheduled loss compensation applies only in claims for loss compensation caused by default on liability in certain contracts, not for claims for loss compensation caused by illegal acts associated with the contract.
• The basis for a loss compensation claim associated with medical malpractice may be considered as an illegal act. In such a case, the compensation amount will not be bound by the scheduled loss compensation agreed to between the parties.
• According to precedents, even in cases of illegal acts in which the victim has agreed to a certain amount of compensation from the perpetrator and given up the right to the balance, the victim can make a claim for compensation of the part of the loss that could not be predicted at the time of such an agreement under certain circumstances.
  • All things considered, it is easily understandable that an agreement made between a medical institution and a patient prior to commencement of medical treatment will not have a strong effect.

What preparations/measures should be made/taken in expectation of a possible legal dispute over a medical accident?

• When making a medical treatment contract with a patient, a medical institution should desirably insert a clause to the effect that a court in Korea shall be a court of jurisdiction and the laws of Korea shall be governing laws.
  • A court in a foreign country may deny the validity of such a clause. However, at least in Korea, the validity will be recognized. In addition, such a clause will make it clear that relevant court proceedings should be held in Korea under the country' s laws. It is also expected that such a clause will dissuade patients from filing a lawsuit in a court in their home country.
• If possible, it is recommended that the ceiling of the compensation amount be stated in the medical treatment contract with the patient' s consent.
  • As mentioned before, the designation of the ceiling of the compensation amount in an agreement does not have a realistic effect in a real court proceeding under the country' s Civil Law
  • Nonetheless, such a ceiling can serve as a criterion in future mediation or arbitration procedures and possibly have the effect of dissuading patients from asking for an amount far exceeding the said amount.