Medical Malpractice Lawyer | What Injured Patients and Families Need to Know

Medical Malpractice | Proving the Doctor's Negligence and the Chain of Causation

Because the patient is not present in the operating room or the diagnostic process, Korean courts have developed easier standards for patients to establish a prima facie case, but the burden does not disappear entirely.

The General Rule: Patient Must Prove Negligence and Causation

Under general tort law, a plaintiff must prove the wrongdoer's fault, the resulting damage, and the causal link between them (민법 제750조). In a medical case this means showing that a reasonably competent doctor in the same specialty would have acted differently, and that acting differently would likely have avoided the harm.

The Relaxed Proof Standard for Patients

The Supreme Court has repeatedly held that because patients lack access to the medical process, they may satisfy their burden by proving a series of indirect facts — that the treatment deviated from an otherwise normal course, and that no other cause besides medical negligence reasonably explains the outcome — after which the burden effectively shifts to the hospital to explain what happened. This 'indirect proof' approach is the single most important legal tool available to patients.

Duty to Explain and Informed Consent

Separately from negligence in the treatment itself, a doctor who fails to adequately explain risks, alternatives, and the necessity of a procedure before obtaining consent can be liable for breaching the duty of explanation, even if the treatment itself was performed competently. This is frequently argued as an independent or alternative basis for a claim, particularly in surgical and cosmetic procedure cases.

Medical Malpractice | What Compensation Can Cover, and What Reduces It

Compensation in malpractice cases is calculated item by item rather than as a single lump sum, and the hospital will typically argue for reductions based on the patient's own pre-existing condition or contribution.

Categories of Damages

A successful claim can include active damages already incurred (additional medical bills, funeral costs in death cases), passive damages for future lost earning capacity calculated against the patient's remaining working life, and solatium (위자료) for the patient's and family's pain and suffering (민법 제751조). Each category requires separate documentation and, often, a labor capacity loss assessment.

Comparative Negligence and Pre-Existing Conditions

Courts frequently apply a 'liability ratio' reducing the award by a percentage to reflect the patient's own underlying illness, delayed presentation, or failure to follow post-treatment instructions. This ratio, sometimes 20-50%, is one of the most heavily contested numbers in settlement negotiations and can matter more than the headline damages figure.

Death and Bereaved Family Claims

When negligence results in death, the deceased's own claim for pain and suffering and lost future income passes to the heirs by inheritance, and the surviving spouse, parents, and children can additionally bring their own solatium claim for their own grief (민법 제752조). Both claims are usually pursued together in the same lawsuit.

Medical Malpractice | Securing and Reading the Medical Records

The medical record is the single most contested piece of evidence in every malpractice case, and how it is obtained and analyzed often decides the outcome before the lawsuit even reaches a hearing.

Requesting the Full Chart Before Filing

Patients and their families are entitled to request copies of their own medical records, including nursing notes, anesthesia records, and imaging, and it is important to obtain the complete chart — not a summary — before deciding whether to pursue a claim. Gaps, later insertions, or inconsistent timestamps in the record are themselves often significant evidence.

Court-Ordered Medical Appraisal (신체감정·진료기록감정)

Once a lawsuit is filed, the court typically commissions an independent medical appraisal from another hospital or a specialist panel to assess whether the treatment met the standard of care and what degree of disability resulted. The outcome of this appraisal is usually the most decisive single factor in the case, more so than either side's own submissions.

Using the Korea Medical Dispute Mediation Agency (한국의료분쟁조정중재원)

Before or instead of litigation, patients can apply for mediation through the Korea Medical Dispute Mediation Agency under the Act on Remedy for Injury from Medical Malpractice and Mediation of Medical Disputes (의료사고 피해구제 및 의료분쟁 조정 등에 관한 법률), which can appoint its own medical investigators. This route can be faster than a lawsuit, though it requires the hospital's participation to proceed to a binding resolution in most cases.

Medical Malpractice | From First Consultation to Resolution

Medical Malpractice | How Fees Are Calculated in Malpractice Cases

※ Costs vary depending on case complexity and specific circumstances; exact fees will be provided during consultation. No specific outcome is guaranteed.

Medical Malpractice | Self-Check for Patients and Families

Frequently Asked Questions

Official References

• Korea Law Information Center — https://www.law.go.kr
• Easy-to-Find Everyday Legal Information — https://easylaw.go.kr
• Korea Legal Aid Corporation — https://www.klac.or.kr