의료과오소송에서의 증명책임 경감에 관한 논의와 최근 판례의 동향

Due to the nature of medical practices such as expertise, secrecy and unbalanced access to the evidences, it is usually very difficult for the ordinary patients to be able to prove the medical staffs’ negligence and the causation. In this circumstances, despite some views claiming to shift the burden of proof to doctors, the theory of mitigating the burden of proof has been discussed to the balance of profits by adequate allocation of the parties’ burden to prove. The theory of mitigating the burden of proof appears as Common Knowledge rule and Res Ipsa Loquitor doctrine in the common law system and has been developed with and by the theory of probability, the theory of prima facie evidence, and the theory of factual presumption in the continental law system. As the 93da52402 case marked a watershed, the courts applied the theory of factual presumption prior thereto and applied the theory of 93da52402 case and the factual presumption method together thereafter. The 93da52402 case is considered to have marked a significant milestone since, in order to presume the medical malpractice, the patients need to prove only the medical staff’s negligent act in treatment, on the other hand, in order to counter such presumption, the medical staffs need to prove (further to the mere disproof), the actual cause to the incidence, which in conclusion could be said that the burden of proof was shifted as a matter of fact. However, 93da52402 could be criticized that it might be able to greatly hinder the organic connectivity with the causation and, the Supreme Court still keeps silence in defining the meaning of “the medical staffs’ medical negligent act in terms of the ordinary persons’ commonsense,” which keeps it hard for the lower courts to have a clear and consistent standard. The decisions of the Supreme Court made within the recent five years reveals that the theory of factual presumption and 93da52402 case are still used in parallel and the limit of each theory seems to be progressively settled as general standard. There is a view that the Supreme Court being more conservative refrains itself from mitigating the burden of proof, though, the decisions of recent five years tells that the trend is not conspicuous. Although the theory of factual presumption is mostly used in practice, thus, if we are able to extract ‘a typical course of event’ directly from the body based on the developed medical skills and the accumulated relevant cases in the future, the theory of prima facie evidence would need to be utilized. In addition, the decision of 93da52402 shall be appreciated since it evidently helped mitigate the patients’ burden to prove and, in order to maximize such effect, the Supreme Court would need to define the meaning of “the medical staffs’ medical negligent act in terms of the ordinary persons’ commonsense,” set the more specific standard and criteria, and amend the legal theory in a way to improve the organic connectivity between the medical negligence and the causation.