Medical Malpractice Lawyer
Medical Malpractice Lawyer | What Injured Patients and Families Need to Know
Medical malpractice occurs when a doctor or hospital breaches the standard of care expected in the circumstances, and that breach causes injury or death. Under Korean civil law, the patient generally bears the burden of proving the medical provider's negligence and the causal link to the harm (민법 제750조), which is why access to medical records and expert review are decisive. Compensation can include medical expenses, lost income, and solatium for pain and suffering, but the amount depends heavily on how clearly negligence and causation are established.
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
We review the obtained medical records and, where useful, arrange for a preliminary review by a cooperating medical advisor to assess whether the treatment appears to have deviated from the standard of care.
Depending on the hospital's likely response and the urgency of the family's situation, we decide whether to first apply to the Korea Medical Dispute Mediation Agency or file directly in court.
If litigation is chosen, we file the complaint and, where records may be altered or incomplete, request an order preserving evidence or compelling production of the full chart.
The court appoints an appraisal institution to evaluate causation and the degree of any resulting disability; both sides submit questions to the appraiser and can challenge the results.
Many cases settle after the appraisal result is known, since it substantially narrows the range of realistic outcomes; cases that do not settle proceed to judgment, with appeal available to either side.
Medical Malpractice | How Fees Are Calculated in Malpractice Cases
A base retainer is typically set according to the complexity of the medical issues involved and whether a pre-litigation mediation or a full lawsuit with appraisal is expected.
A success fee is usually calculated as a percentage of the amount actually recovered through settlement or judgment, reflecting the length and difficulty of medical litigation.
Court-commissioned appraisal fees and any privately obtained expert opinions are billed separately as case costs, and appraisal fees can be significant in complex surgical or obstetric cases.
Filing fees, stamp duty, and record acquisition costs are calculated based on the amount claimed and the number of institutions from which records must be obtained.
※ 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
1️⃣ Did Something Go Wrong With the Treatment?
- Did your condition worsen suddenly during or shortly after a procedure, without a clear explanation from the medical staff?
- Was there a significant delay between your symptoms and a correct diagnosis or referral to a specialist?
- Did the hospital give you inconsistent explanations about what happened after the fact?
- Were you or your family not told about the risks of the procedure beforehand in a way you understood?
2️⃣ Have You Secured the Evidence?
- Have you requested and received the complete medical record, including nursing notes and anesthesia records, not just a summary?
- Have you kept copies of imaging studies, test results, and any documents given to you at discharge?
- Have you written down, with dates, your own timeline of symptoms and conversations with medical staff while your memory is still fresh?
- Have you avoided signing any settlement or waiver presented by the hospital before getting independent legal advice?
3️⃣ Is This a Death or Serious Disability Case?
- If the patient passed away, has an autopsy or death certificate been obtained that documents the cause of death clearly?
- Have all potential heirs been identified, since inheritance-based claims may need to be brought jointly?
- Has a labor capacity loss or disability rating been considered as part of estimating future damages?
4️⃣ Timing and Options
- Are you aware that claims are generally subject to a statute of limitations running from when you knew of the damage and the person responsible?
- Have you considered whether to apply to the Korea Medical Dispute Mediation Agency before filing a lawsuit?
- Do you understand that gathering full records and expert input before filing often produces a stronger claim than filing hastily?
