Easing the burden of proof of causation in medical malpractice cases: Focusing on the Supreme Court Decision 2022Da219427 Decided August 31, 2023

Recently, the Supreme Court sentenced a ruling that presented 'probability' as a criterion for determining whether there is a violation of the doctor's duty of care in medical practice. The judgment of the target judgment is somewhat different from the existing case law that the Supreme Court has used to determine the existence of medical negligence of doctors. As a premise of the discussion, the existing case law on the relaxation of the responsibility for proof of medical errors was examined. One is a method of estimating the causal relationship between medical negligence and outcome when the victim proves a certain indirect fact, and the other is a method of simultaneously estimating medical negligence and causal relationship when the victim proves a certain indirect fact. We also looked at the points where the two laws were criticized. Unlike the existing case law, the target judgment introduced the theory of probability to mitigate the causal relationship between medical negligence and outcome. Specifically, if the patient proves the existence of a violation of the duty of care required of ordinary medical personnel at the medical level implemented in the field of medical clinical medicine, that is, an act evaluated as medical negligence, and that the negligence is 'probable' to cause damage to the patient, the causal relationship between medical negligence and damage is estimated. In order to examine the validity of the target judgment, we first looked at the probability theory, which is the theory of easing the burden of proof, and then confirmed that the target judgment was a valid conclusion by reducing the patient's burden of proof. In addition, the target judgment is also problematic, such as the ambiguity of the concept of probability, but it is considered appropriate to flexibly apply the target judgment and existing case law for each individual case in terms of victim protection.