의료과실과 상해보험약관상 면책조항 - 미국판례와 우리 판례의 비교를 통한 면책조항의 타당성 -

Accidental insurance means that an insurer shall be liable to pay the insured amount and other benefits if a peril insured against causing a bodily injury occurs. A peril insured against causing a bodily injury in a contract of accident insurance shall satisfy following requirements; a bodily injury of the insured results solely from bodily injury caused directly, exclusively, and independently of all other causes by external, violent, and accidental means. When a peril insured against causing a bodily injury in a contract of accident insurance occurs, the insurer must pay the insured amount to the beneficiary. Nevertheless, the insurer can disclaim this responsibility under the exclusionary provision. A peril insured against causing a bodily injury is the unique and only concept of a contract of accident insurance. However, Commercial Act stipulates only a peril insured against causing a bodily injury without any other explanation and provisions about it. Thus, it is inevitable to interpret an accidental insurance policy itself for clarifying the detailed concept of a peril insured against causing a bodily injury and a exclusionary provision. To decide whether the peril insured in an accidental insurance policy includes death of the insured caused by medical malpractice during treatment or operation for disease or bodily or mental infirmity, and whether the concept of medical treatment codified in the exclusionary provision includes medical malpractice, depends on the interpretation of judiciary cases and legal academia. This article focuses on discussing whether the peril insured in an accidental insurance policy contains a bodily injury of the insured caused by medical malpractice during treatment or operation for disease or so on, and whether the concept of medical treatment codified in the exclusionary provision includes medical malpractice. In detail, part II reviews the system of accident insurance and exclusionary provision in the United States. Moreover, this part addresses whether the peril insured in an accidental insurance policy includes a bodily injury of the insured caused by medical malpractice during treatment or operation for disease or so on, and whether the concept of medical treatment codified in the exclusionary provision includes medical malpractice by analyzing the U.S. cases. Lastly, part Ⅲ reviews the latest Supreme Court’s case (대법원 2010.8.19. 선고 2008다78491,78507 판결) about this article’s issue, and then, as a conclusion, presents implications for our law by comparative legal study.