게임이론으로 바라본 위자료의 새로운 기능-의료과오소송을 중심으로-

Traditionally, the consolation money has the multiple functions(replenishment· punishment·deterrence·prevention·satisfaction). But recently the complementary function and the reconciliatory function of consolation money have come to light. Such functions of complementarity and reconciliation could gain further strength/validity/support when approached through an economic perspective, specifically game theory. The reconciliatory function of consolation money is most apparent in court in case of medical malpractice. According to game theory, if the plaintiff expects lower chances of winning than the defendant, consolation money is most appropriate in bringing the two parties to reconciliation. In medical malpractice cases the anticipated chances of winning of the plaintiff is generally lower than that of the defendant, due to the plaintiff’s difficulty in fulfilling the burden of proof. In such instances if the court allows for consolation money for the doctor’s breach of obligation to explain, it results in an adjustment of both parties’ interests/benefits and thereby plays a reconciliatory function. Thus, a doctor, as a professional in medical treatment, should provide proper explanation to the patients and obtain their informed consent in advance for the his medical treatments or the operations. The doctor should be held liable if he was negligent in his obligation to explain because medical treatment can be viewed as a contractual relationship between a doctor and a patient for the recovery or operation. At the same time, a doctor’s negligence in his obligation to explain can give rise to a tort liability when the doctor had caused damage to the patient as a result of his negligence. In terms of burden of proof, the doctor will have a burden of proof if the doctor’s liability for his negligence to explain is a contractual liability, while the patient will have the burden of proof if the liability is a tort liability. The patient has lost the opportunity to choose whether to be treated and how he would like to be treated as a result of not being provided with sufficient information from his doctor. If he proves the doctor’s breach of obligation to explain, the court allows for consolation money for the doctor’s breach of obligation to explain. But the court allows any damages which arose from such breach and the causation between the breach and damages in case of seeking monetary damages(except compensation for mental suffering) just in case the patient proves the causal relationship between damages and the doctor’s breach of obligation to explain. The consolation money cannot achieve reconciliation in all medical malpractice cases. If the plaintiff unusually expects high chances of winning whereas the defendant also anticipates to win, it will be difficult for the court to induce reconciliation via the consolation money. Thus in such cases, the court considers the theories of loss of chance to medical treatment and of limit on responsibility by contributory negligence and relies the theory of limit of responsibility in addition to the consolation money to induce the reconciliation of both parties. The court’s take on this is fitting/well-suited in terms of efficiency as it appropriately adjusts both parties’ interests and reaches reconciliation by overcoming the procedural perplexities and limitations of the lawsuit with respect to the burden of proof.