Double Jeopardy for Malpractice Victims

In March 2002, 49-year-old Kim Wang-gyu was beaten by hooligans on his way home after a night of drinking and died eight hours later in a hospital emergency room.

Kim’s family filed a lawsuit, saying, “He would have survived if the hospital had not left him untreated for six hours because they mistook him for a drunk instead of a patient who had suffered cheek bone and rib fractures, which the autopsy results confirmed.”

At the case’s first hearing, Kim’s family lost when a doctor relative refused to testify because of pressure from medical circles. But they appealed the decision with the help of a Korean-American doctor who they got to know through a civil organization that deals with medical malpractice.

Every year, the number of complaints and lawsuits related to medical malpractice increases, but the bills designed to make it easy for consumers of medical services to receive compensation have been shelved for 18 years.

According to the Korea Consumer Protection Board (KCPB), reported cases involving medical malpractice compensation have increased more than 142 percent over the last six years from 450 cases in 2000, to 559 in 2001, to 727 in 2002, to 661 in 2003, to 885 in 2004, and to 1,093 in 2005.

Yet the board does not have the power to force hospitals to compensate victims, leaving them no choice but to file lawsuits. In these cases, they must suffer financial and emotional burdens and endure long, difficult lawsuits.

In September 2001, a patient was infected with a malicious virus in his optic nerve while he was receiving treatment for a tumor inside his nose, and he lost his eyesight. He filed a lawsuit against the hospital that refused to give him compensations for the damage. He spent three years processing through his first hearing alone.

Lee Hae-gak, the manager of a medical service team at the KCPB, says, “It takes an average of six years for a medical malpractice suit to go all the way to the Supreme Court. The victims of medical malpractice are being forced to suffer a second time because of the lawsuits.”

A judicial yearbook shows a rapidly increasing number of medical malpractice lawsuits: 679 in 1999, 738 in 2000, 858 in 2001, 882 in 2002, 1,060 in 2003, and 1,124 in 2004.

Victims often face a heavy burden in malpractice lawsuits because they have to prove malpractice against doctors who are experts in medicine.

Lee Jin-yeol, a leader of an organization for the families of malpractice victims, said, “We have no choice but to ask doctors to prove another doctor’s malpractice, and we have had many difficulties because doctors are often reluctant to do so.”

Since 1989, six bills have been proposed that call for doctors to prove that they did not make a mistake, but they went nowhere because of differences among the medical sector, civic groups and the government.

Last December, Rep. Lee Ki-woo of the ruling Uri Party’s health and welfare committee came up with a malpractice and compensation bill to relieve the burden of proof from the patients’ shoulders, but it is unclear whether the bill can pass the National Assembly in the face of the opposition from the medical sector.

“There is a huge gap between the information that patients have and that doctors have, so patients are at a disadvantage in malpractice cases,” Lee said. “Doctors should bear the burden of proof.”

Won-Jae Lee wing@donga.com peacechaos@donga.com