Doctor Wars in Korea – The Doctors Strike Back (2) – Issues in Civil Law Related to the Collective Actions of Doctors

Contemplate a state of affairs the place collective actions by the docs (on this textual content, for comfort, the time period “docs” means “interns and residents”) end in delayed or canceled surgical procedures, resulting in disabilities and even dying for sufferers who couldn’t obtain therapy. How would legal responsibility for damages be distributed among the many victims (sufferers), the hospital, and the docs? Can they be utterly exempt from civil liabilities in such situations?

The Civil Authorized Standing of Medical doctors and Their Relationship with Sufferers and Hospitals

As mentioned in a earlier article (Physician Wars – The Medical doctors strike again (1)), we’ve established that authorities mandates for medical service graduation are legitimate and that the refusal to offer medical providers by the docs is unjustifiable. 

Assuming this premise, we delve into the authorized standing of them. In keeping with the Supreme Courtroom of Korea, docs are thought-about to have twin standing as each trainees and staff. Due to this fact, the connection amongst sufferers, hospitals, and docs is as follows:

a. Sufferers enter right into a medical contract with hospitals, granting them the appropriate to request medical providers, which hospitals are obligated to satisfy.

b. Hospitals have interaction with the docs by way of coaching contracts (which embrace parts of employment contracts), thus obligating hospitals to offer acceptable training and demand cheap labor in return.

c. The docs, by signing the coaching contract, have the appropriate to demand correct training from hospitals and are concurrently obliged to offer appropriate labor.

Overview of Comparable Instances – Damages to Third Events As a consequence of Collective Actions

The present state of affairs, the place the docs’ refusal to deal with has prevented hospitals from offering medical providers, resulting in potential dying or incapacity for sufferers, lacks direct precedents in Korea concerning the civil liabilities of docs in collective motion conditions. Nevertheless, parallels could be drawn with instances the place third events undergo losses because of disputes involving staff and firms.

In such situations, Korean case regulation usually distinguishes between authorized and unlawful collective actions (쟁의행위) of staff:

If the collective motion is authorized, third events could search damages from the employer, who can’t maintain the employees liable. Beneath the precept of the assistant’s efficiency in Korean Civil Regulation (Article 391), the employer’s negligence is essentially irrelevant.

If the collective motion is unlawful, each the employer and the third events can search damages from the employees, as clearly established by the Supreme Courtroom.

Making use of these rules to the present state of affairs, if the collective motion by docs is deemed authorized, sufferers can maintain the hospital accountable. Conversely, if the motion is deemed unlawful, sufferers can declare damages from each the hospital and the docs, whatever the hospital’s intent or negligence. Furthermore, this dialogue has solely thought-about damages claims primarily based on torts (불법행위); sufferers may also declare damages from hospitals for breach of contract beneath Korean Civil Regulation (Article 390).

Potential for Third-Celebration Proper Infringement Claims

Past the aforementioned concerns, sufferers would possibly be capable to maintain the docs accountable beneath the precept of third-party proper infringement (제3자 채권 침해). The Supreme Courtroom has held that even when there isn’t any direct relationship between the debtor and the third celebration, if the third celebration (the docs) illegally impedes the belief of the creditor’s rights (the affected person’s rights), they are often held liable.

Conclusion

The docs, possessing twin standing as trainees and staff, could be held accountable for damages to 3rd events ensuing from collective actions, much like different employment-related disputes. Moreover, claims for damages primarily based on third-party proper infringement may be viable.