Scope of Explanation Duty to Obtain Patient's Consent Before and After Medical Treatment
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Healthcare professionals must provide sufficient information to patients to help them understand and make informed decisions about medical procedures such as tests and surgeries. The principle that patients must provide consent before undergoing treatment is referred to as the "Pre-Consent Principle" and is stipulated in Article 24-2 of the Medical Law.
For Korean medicine practitioners (Han practitioners), after explaining the potential side effects, aftereffects, and precautions the patient must follow before and after a procedure, written consent should be obtained. However, if the procedure could be delayed by the consent process and the patient’s life is at risk or if significant mental or physical harm could occur, the duty of explanation may be exempted.
The Supreme Court has ruled that when preparing a surgical consent form, the scope of the physician's explanation duty and whether the patient fully understands the information should be judged based on the consent form signed by the patient (Supreme Court Case 2017Da248910).
The timing of the explanation should be prior to the medical procedure. The patient should have adequate time to consider, consult with others if necessary, and make a decision before the treatment (Supreme Court Case 2021Da265010).
The explanation should cover the patient's medical condition, the necessary medical procedure, the expected results, associated risks, potential outcomes if the procedure is not performed, and any alternative treatments. The physician has the duty to explain these aspects and obtain the patient's individual consent. However, this duty is not exempted solely due to the low likelihood of aftereffects or complications arising from the medical procedure (Supreme Court Case 2002Da45185).
Regarding the level of explanation, if the patient understands the risks and decides to refuse treatment, the healthcare provider is not liable for failing to provide an explanation unless there are special circumstances (Supreme Court Case 2009Da70906).
The explanation duty generally falls on the physician directly performing the treatment. However, unless there are special circumstances, it is sufficient for the attending physician or another physician to provide the explanation (Supreme Court Case 99Da10479).
Nurses and nurse assistants, under normal circumstances, are obliged to assist with medical procedures under the physician's direction but are not responsible for the same level of duty or explanation as the physician (Supreme Court Case 2013Da33485).
Moreover, the explanation duty typically applies to adult patients with decision-making capacity. Consent from family members cannot substitute for the patient's consent. If the patient is a minor, the attending physician must explain the procedure to the legal guardian and obtain their consent.
This explanation duty is explicitly the responsibility of the physician, who must document the details of the explanation (and, if necessary, record or videotape with the patient's consent) as proof.
In cases where a physician discovers symptoms suggesting a potential disease during treatment, they have a duty to explain and recommend tests or measures to clarify the possibility and extent of the disease, unless the physician has already performed the standard treatment for the symptoms and failed to diagnose the disease (Supreme Court Case 2009Da1404).
If the patient has already heard the explanation and is deemed to have consented to the treatment, the physician is not liable for failing to provide an explanation in cases where the patient's consent was clearly expected (Supreme Court Case 2017Da248919).
Regarding damages due to a failure to explain, if only compensation for emotional distress is claimed, it is sufficient to prove that the patient lost the opportunity to make an informed decision due to insufficient or absent explanation. However, if compensation for all damages is being sought, the failure to explain must be significant enough to be considered a violation of the physician's duty of care during the treatment, and the causal link between the violation and the serious outcome must be proven (Supreme Court Case 95Da56095).
Ultimately, the physician’s explanation duty is critical in determining liability for medical negligence. Therefore, professional associations should establish standardized procedures and forms (such as the scope of the patient’s written consent, as seen in financial product agreements, along with written or recorded consents and guarantees of confidentiality regarding recorded materials).
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