의료윤리와 법*: 첨단의학기술 발전에 따른 문제점을 중심으로

Modern medical technology should be protected and encouraged to develop as it is a product of free research of the human spirit and will eventually bring a considerable medical and economic benefit and ultimately promote the welfare of the mankind. However, on the other hand, negative aspects of the science and technology should be regulated since its abuse or misuse may cause irrecoverable harms to our society.

The Modern medical technology is accused of being intricate, prohibitively expensive and potentially dangerous. Due to the potential risk of the Modern technology in a way or another, there is a tendency to expand the scope of the "negligence liability” in the fields of the environment, mass-transportation, malpractice and the like. With the development of biotechnology, the scope of liability in medical care is increasing.

With the development in biotechnology, there has been a tendency to overemphasize the genetic features in medical care. Medical science was originally based upon “therapeutic medicine” rather than “predictive medicine”. However, nowadays the advancement of genetics triggers the medical science to advance towards the "predictive medicine" - such as genetic analysis prior to pregnancy and the like - outdoing the “therapeutic medicine”, and further towards the “creative medicine”.

“Predictive medicine may be used to encourage a so-called “defensive treatment” in order to avoid the risk of the malpractice suits. In order to reduce the social costs of such defensive treatment, the court should not compel physician to take every and all available diagnostic tests for the patient. Given that the defensive medical science has a tendency to expand the scope of the abnormality and the diseases, our legal system, at this stage, should work to limit the scope of such abnormality in medical diagnosis. In this regard, we should provide a place of discussion to enhance the mutual understanding between the legal scholars and the physicians.

The concept of the "informed consent" does not mean such relationship that one party enjoys a right and the other party merely bears obligation. Rather, the informed consent implies the interactive relationship in the process of decision-making. This is not an explanation in terms of the exchange of information, but a concept for ensuring a “partnership of the meaning” based on the mutual understanding. This concept could be understood as an expression of the social solidarity such as care and concern. In this regard, several misunderstandings concerning the “informed consent” should be dispelled.