산부인과 의료과오소송에 있어 판례상 책임제한 법리‐ 하급심 판례의 분석을 중심으로 ‐

This article attempts to explore the legal doctrine on limitation of liability in medicalmalpractice litigation through an analysis of court’s precedents related to the obstetricsand gynecology, and to find a reasonable application of the doctrine. The discussions have focused on the liability requirements such as negligence andcausation in medical malpractice cases, and the calculation of damage compensationhas been dealt with relatively neglect. The limitation of liability, however, is a verysensitive matter from a legal practical point of view. The doctrine on limitation ofliability means the amount of damages should be reduced by courts based on damageadjustment theory in the perspective on fair and just distribution of losses, andthe Supreme Court specifically suggests an analogical application of comparativenegligence theory. But a risk infringing legal stability is inherent in the doctrine on limitation ofliability. This would give rise to the danger of arbitrary decision making. The danger,however, might be even somewhat inevitable because the doctrine should aim atconcrete validity in each cases. In other words, it is imperative that the legislative orjudicial measure to mitigate the risk should be considered. This article is to providea standard for estimating the proportion of limitation of liability by classifying thegrounds on limitation of liability typologically. In the first place, in case of applyingthe legal doctrine on the presumption of medical negligence or causation, the scopefor limitation of liability should be extended broader. Secondly, whether there areany physical conditions of the victim, such as a previous illness, a diathesis, is an important factor for determining a ratio of the limitation in an individual case. Finally, the symptom or risk of diseases and the uniqueness of medical practice suchas urgency are also important factors in applying this legal doctrine.