의료소송에서의 인과관계에 관한 법리 (판례 및 실무에 대한 고찰) -대법원 2023. 8. 31. 선고 2022다219427 판결의 재음미- = Doctrine of Causation in Medical Malpractice Litigation (A Review of Case Law and Judicial Practice) -Reconsideration of Supreme Court Decision 2022Da219427, rendered on August 31, 2023-

다국어 초록 (Multilingual Abstract)

Causation in medical malpractice litigation is a crucial element that determines whether liability for damages exists. In 2023, the Supreme Court newly articulated a central legal principle on the proof of causation in medical malpractice cases (hereinafter, the “Probability Decision”). This article examines the Probability Decision, along with Korean case law and judicial practice, in greater depth and assesses their soundness. In medical malpractice litigation, the Korean approach to determine causation exhibits a distinctive development of legal doctrine. The evidentiary threshold of “probability” (gaeyeonseong) is lower than the “preponderance of the evidence” standard in common law jurisdictions, yet higher than the Japanese standard of a “substantial possibility” that survival would have been achieved or that a serious illness would not have occurred. Moreover, Korean judicial practice actively recognizes reductions in damages based on a plaintiff’s predisposition, which in substance limits the amount of damages by reference to a possibility that could not be excluded, thereby partially implementing the concept of proportional liability.
The foregoing Korean doctrine and judicial practice may be regarded as both sound and reasonable. The adoption of the loss-of-chance theory or proportional liability would be less consistent with the Korean legal system and would likely entail more drawbacks than benefits. At present, it cannot be said that Korean practice fails to afford relief to patients. The tendency to reduce damages on the basis of a pre-existing condition is significant in that it strikes a balance in allocating the burden of proof. However, as the degree of reduction lacks predictability, it is necessary to establish certain standards or guidelines that can suggest an appropriate “range of discretion.”