치료기회상실과 관련된 일본 최고재판소 판결의 동향과 우리 민법에의 시사점

In medical malpractice cases, issues concerning damages for the "loss of chance for treatment" face limitations in protecting patients' rights if traditional theories of causation are strictly applied. Particularly in cases such as the misdiagnosis of terminal cancer where the expected therapeutic effect is not substantial, claims for damages are often denied because the legal causation between medical negligence and the patient's death is difficult to establish, even when negligence is proven. Such outcomes have been criticized as contrary to the principles of justice, as they allow medical practitioners to avoid legal liability despite clear negligence. Reflecting these concerns, the Supreme Court of Japan has developed legal doctrines regarding the loss of chance for treatment. In its 2000 decision, the Court recognized the infringement of a "substantial possibility of survival" as an independent protected interest. Furthermore, in its 2011 decision, the Court clarified that even in cases where there is no possibility of survival, damages may still be awarded for the infringement of the "expectation or benefit of receiving appropriate medical treatment" if significantly inappropriate medical conduct is present. The Supreme Court of Korea has also recognized solatium (emotional distress damages) in cases involving the loss of chance for treatment. However, unlike the Japanese Supreme Court, the Korean Court has not clearly specified the nature of the protected legal interest. Moreover, Korean precedents are inconsistent, with some requiring "significantly insincere medical treatment" to award damages while others do not. This study analyzes the trends in the Japanese Supreme Court’s jurisprudence and examines the implications that its reasoning provides for the legal doctrine of medical malpractice liability under the Korean Civil Law.