의료과실소송에서 증명책임 전환 법제화 연구

Abstract

In claims for damages arising from medical accidents, patients bear the burden of proving the existence of medical negligence as well as the causal relationship between the negligence and the resulting harm. However, the professional nature of medical practice and the asymmetry of information between physicians and patients make such proof particularly difficult. This article examines the theories and judicial precedents concerning the structure and limitations of the burden of proof in medical malpractice litigation, and, in particular, analyzes German legislative models that adopt the doctrine of reversing the burden of proof in medical malpractice cases, with the aim of exploring directions for improving the Korean medical liability system. While judicial doctrines aimed at alleviating the burden of proof have shown a tendency to mitigate patients’ evidentiary difficulties to some extent, it is difficult to deny that these approaches suffer from limitations in terms of legal stability and predictability due to the ambiguity of their requirements and scope of application. In response, this article goes beyond the existing case-law–based doctrines of burden alleviation and examines the possibility of explicitly codifying a limited reversal of the burden of proof. In addition, it considers phased alternatives, including the classification of medical contracts as nominate contracts under the Civil Code and the expansion of physicians’ duty of explanation in light of the inherent difficulties in proving causation. Ultimately, this article seeks to propose ways to substantively alleviate patients’ evidentiary difficulties in medical malpractice litigation while maintaining an appropriate balance between legal stability and fairness.