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Seoul YMCA Citizens’ Mediation Center
Lawsuit filed to claim compensation for mother’s mental distress as court ruled maternity nurse is not guilty for dead fetus
- A mother and her family suffered extreme mental distress after a fetus was left unattended by maternity nurse.
- Court ruled not guilty in May on the four years’ old case ? service negligence recognized but no murder or injury under jurisprudence.
- The case demonstrates how difficult it is to resolve medical accidents ? urgent to enact the proposed Act on Medical Dispute Mediation, pending for 17 years
1. A lawsuit is being filed for compensation for a mother’s mental distress caused by a fetus that died as a result of a maternity nurse’s negligence. On June 30 last, Seoul YMCA began legal aid to help the mother, Lee (41), to file a complaint with Seoul District Court to claim compensation for physical and mental damages. She suffered an accident during the delivery of her baby at a maternity house in Dongdaemun-gu, Seoul, in 2001. Though she was concerned her child would be too heavy because she was two weeks overdue and she was a diabetic, Seo (55), the maternity nurse, let her deliver the baby, insisting there would be no problem at all. On the day of delivery, the fetus died when the maternity nurse left Lee in labor for four hours. The dead fetus had to be removed by caesarean operation later on. Lee immediately filed a criminal complaint with the Seoul District Prosecutors’ Office, claiming that the death and injury were attributable to the maternity nurse’s negligence of her professional duty. The defendant was found guilty in the first and second instance court trials. However, the Seoul Appellate Court ruled that she was not guilty in a retrial based on a decision by the Supreme Court (third instance court). The court found that the maternity nurse was not guilty, overruling the earlier decision by the first instance court by saying, “It is not a murder as a fetus is not a human being, though it is recognized that the defendant was negligent of her duty. There is no direct relation between the mother’s injury and the negligence.” The prosecutors appealed to the Supreme Court on this case.
2. As part of its legal aid to medical accident victims to promote the public good, Seoul YMCA helped file a lawsuit claiming one hundred million won in liquidated damages, as it believed a civil claim is viable for the distress caused to the mother and her family by the maternity nurse’s negligence, irrespective of the legal point as to whether a fetus is a human being or not. (The claimant is represented by Lee Han-mu, attorney-at-law, Haemir Law Firm, a member of YMCA Citizens Interest Defense Counsel). This case demonstrates how difficult it is to resolve a medical dispute. Many patients are being frustrated by convoluted processes as there is no dispute mediation system as yet, though many victims undergo severe hardships sustained by medical accidents. The current Medical Act is ineffective as mediation is not compulsory, though it contains a provision that medical disputes are to be settled through mediation by the Medical Review and Mediation Committee (Article 54-2 of the Medical Act). Therefore, medical accident victims suffer double damages since there are no means other than litigation owing to the difficulty of proving guilt and the procedural difficulties that arise when a medical accident occurs.
3. To find a breakthrough under such circumstances, citizen groups have steadily contended since 1988 that we need to enact a Medical Dispute Mediation Act, but they have failed on every occasion because of the differences in interest among the medical industry, government and various social sectors, including differences over the △ Mediation First System, △ the composition of committees, △ liability without fault, △ medical liability insurance, and △ special treatment under criminal law. It is difficult for the patients themselves to prove medical accident liability because of its special characteristics, the lack of expert information, and the relationship between causes and effects. Therefore, the majority of victims give up litigation half way through as the chance of victory is slim. Most serious is the fact that patient damages and suffering are left unattended, as prompt settlement is unlikely while physical and mental damages are intensified while the litigation continues.
4. It is to be welcomed that the National Assembly Committee and the government ministry have announced their plan to enact the Medical Dispute Mediation Act under such circumstances. We hope a more practical system will be introduced to remedy the rights of medical service consumers, and we also wish for the speedy settlement of disputes while urging the prompt enactment of a fair law. We also hope the current case will provide the momentum needed to arouse public opinion in favor of the enactment of the proposed Medical Dispute Mediation Act, and that all the parties related to the medical disputes will do their best to establish a fundamental relief system.
▶ Contact: Kim Hui-kyeong, Secretary, Citizens’ Mediation Center (02-725-1400) |
