Korean Journal of Medical Ethics

The Korean Society for Medical Ethics

Korean J Med Ethics 2005; 8(1):34-43

pISSN: 2005-8284, eISSN: 2234-3598

DOI: https://doi.org/10.35301/ksme.2005.8.1.34

Article

의료분야의 퍼터널리즘(Paternalixm)에 대한 민사법적 강제: 대법원 2005. 1. 28. 선고 2003다14119 판결에 대한 평석을 겸하여

류화신¹

the Civil Law System's Compulsion of Paternalism in Medical Area: with a commentary on the Supreme Court Decision 2003Da14119 delivered on January 28, 2005

Hwa-Sin RYU¹

¹대한의사협회 의료정책연구소 책임연구원

¹Research Institute for Healthcare Policy, Korean Medical Association

ⓒ Copyright 2005 The Korean Society for Medical Ethics. This is an Open-Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/4.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Published Online: Jun 30, 2005

ABSTRACT

This study discusses how paternalism in ethics should be estimated legally by main issues, summary of decision, and reasoning of the Supreme Court Decision. This Decision delivers that the duty to protect a patient's life is prior to the duty to respect a patient's rights of self-determination.

According to the autonomy principle, patients have the right to determine whether they allow the medical professionals to treat their disease or not and the medical professionals must follow the patients' decision. But the concept of paternalism restricts the autonomy principle.

However, I assert that the medical professional is not liable for the patient's death when he or she rejects medical treatments(gastrolavage) strongly making a disturbance as this case. We should examine how serious the patient's rejection of medical treatments was and how difficult the medical professional's paternalistic intervention was. Although medical law is different from medical ethics, paternalism in medical area can be expected legally as far as a medical professional can overcome a patient's continuous and strong rejection.

So, this study reviews the relation between medical professional and patient, and lays stress on the limitation of paternalism in medical area.

Keywords: 퍼터널리즘; 온정적 간섭주의; 온정적 간섭; 자율성 존중의 원칙; 환자의 치료거 부; 의사와 환자의 관계

Keywords: paternalism; paternalistic intervention; autonomy principle; patient's rejection of medical treatments; relation between medical professional and patient