Breakthrough in medical dispute resolution

By Han Du-hie

After many twists and turns, the National Assembly finally passed the Bill on Malpractice-related Damage Relief and Medical Dispute Resolution on March 11. The new act will take effect one year after it is proclaimed law this month.

It has been 23 years since a similar bill dealing with disputes over medical malpractice was first presented to the Assembly in 1988. This act aims to secure just, speedy and inexpensive resolution of medical disputes, focusing on alternative dispute resolution (ADR) procedures, while traditionally malpractice cases have been determined mainly through litigation in civil courts.

Still, the act does not bar patients or doctors from filing a lawsuit with a court. Article 3 of the act clearly states that this act applies to international as well as domestic patients seeking compensation against Korean hospitals or clinics for medical negligence.

Following the legislation, the Korean Commission for Settlement of Medical Disputes, a whole new dispute resolution body, is to be set up by the first half of 2012. The commission, which resolves medical disputes by either mediation or arbitration, features a dual system of legal and medical assessment of malpractice cases.

On one hand, the Mediation Committee, which includes judges and attorneys as its members, decides whether the healthcare provider(s) should be held legally responsible for the damages incurred by the patient. On the other hand, the Medical Evaluation Panel, of which doctors and national prosecutors are members, exercise its discretion to investigate the cause of the accident.

The panel determines whether the accident in question was caused by professional negligence or not, regardless of the patient’s failure to prove each element of his or her claim. It reviews medical records, questions persons involved in the treatment or care, gathers necessary facts and takes other relevant measures.

During the hearings of a Chamber in the Committee, which presides over a particular case, the panel member in charge of the case appear before the chamber and give their expert opinion on the case.

These innovative procedures, in my view, would significantly reduce time and expenses for both sides of the conflict.

In addition, the new commission will operate a Payment Guarantee System in accordance with the act, under which when a healthcare provider fails to pay the damages settled by mediation or arbitration, or awarded in a final ruling by a court of law; the commission takes responsibility for compensating the patient instead of the provider compensating him or her.

The commission later recoups the expenses from the provider responsible for the damages. With this, patients can be protected even if the medical service is not covered by liability insurance.

With about one year to go before the act comes into force, many say that the key to success for the new system of medical dispute resolution is how best to organize the commission, especially the Medical Evaluation Panel inside the commission in order for it to be composed of reliable, professionally competent and unbiased members.

These views are quite irrefutable. However, personally I am cautiously optimistic about the future of the new dispute resolution body, for it appears that slowly but surely, the “conspiracy of silence” among medical doctors is becoming a thing of the past; they know that it does not help any of them in the end.

Also, in my opinion, the prospect of bureaucratization of medical experts serving the commission might, in a sense, help ensure balance, neutrality and impartiality of the panel.

Han Du-hie, a member of the Korean Bar Association, works for the Korea Health Industry Development Institute. The wrier can be reached at duhie89@khidi.or.kr.