의사의 구명(救命)의무와 환자의 자기결정권의 관계에 관한 민법적 고찰

In the subject judgment, in which a patient underwent surgery by non-transfusion method and she died from excessive bleeding in the end, the Supreme Court dealt with relationship between patients' self-determination right and doctors' duty of saving life. In the decision, the Supreme Court quoted the previous principle regarding patients' self-determination right in the so-called 'Grandma Kim case'. And the Supreme Court mentioned a criterion that doctors should decide carefully what to prioritize between self-determination right and duty of treatment in a certain situation, by which the Court made a decision whether or not a doctor made a medical mistake. In this article, we contemplate on whether the principle of the subject judgment and applying to other similar cases are valid or not. In order to investigate these questions, we look through three themes - medical contract and the duty of doctors, relationship between duty of explanation and patients' self-determination, and comparison to similar cases. Especially, we are going to review the duty of declaration which is one of doctors' duties on a medical contract. And we will examine two important facets in doctors' accounting. First, doctors should describe expected hazard situations thoroughly. Second, doctors have to persuade a patient selecting a treatment means by his or her self-determination but facing danger afterwards to change the treat method.