의료사고 민사책임에 있어 계약법적 접근론에 대한 비판적 고찰

This article attempts to verify the validity of contract law approach for medical malpractice in the perspective of legal theory and policy, and to find practical reasons of the theory. The Supreme Court has mainly taken tort law theory in the cases of the medical malpractice. A new theory, however, suggest that we should consider contract law rather than tort law in medical malpractice cases. The contract law approach criticizes the tort law approach for invoking improperly ‘the obligation moyens theory’ in French Civil Code. Unlike the Supreme Court theory, the contract law approach argues that defendant-physician should take the burden of proof on physician’s negligence. In a malpractice suit, however, it is reasonable to consider physician’s professional obligations as the integrated requirements, rather than to take a different legal structure depending on traditional dualistic liability theory. The obligation moyens theory may be useful to recognize the nature of the obligations. The reversal of the burden of proof in medical malpractice cases is likely to cause growth of litigation and wrong defensive medicine from a policy point of view. In conclusion, it is difficult to accept that contract law approach attempting to reverse burden of proof in the area of liability law for medical negligence. However, it should be found practical reasons to capture a variety of physician’s professional obligations in various medical agreements.