의료과실 없이 발생한 의료처치 부작용의 상해보험 보험사고 해당성

Whether the side effects of medical treatment for diseases is an ‘accident’ under accident insurance is difficult to answer. Adverse events of medical treatment can be classified into cases where side effects or complications occurred without medical negligence and cases where medical negligence was engaged. With regards to non-negligent medical events, lower court judgments are inconsistent, causing serious confusion. Standard Terms and Conditions of Accident Insurance contained ‘medical treatment exemption clause’ before, exempting insurers regardless of the existence or absence of medical negligence. Now that the amended Standard Terms and Conditions do not have such a clause, the problem of whether non-negligant medical events is an accident needs to be identified. This paper argues that the general trend of lower court judgments which focuses on whether the duty to explain side effects was fulfilled is unjust, and that typical side effects of medical treatment should not be considered an accident. This view is consistent with the existing court rulings on medical treatment exemption clause, which stated that only highly invasive medical treatments are subject to exemption clause. Various U.S. rulings, including Senkier v. Hartford Life & Accident Insurance Co., are in support of this view.