"The System of Full-time Specialist Psychological Committee Members for Doctors Should Be Abolished"
[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] A lawyers' organization has raised concerns about the fairness and promptness of medical expert opinions used to assist judges' decisions in medical trials.
The Human Rights Committee (Chairman Choi Geon-seop) and the Medical Human Rights Subcommittee (Chairman Shin Hyun-ho) of the Korean Bar Association issued a statement on the 3rd titled "Urging the Securing of Fairness, Objectivity, and Promptness in Medical Expert Opinions and Trial Procedures," strongly urging "courts, medical organizations, and others to ensure fairness, objectivity, and promptness in medical expert opinions and medical trials."
They further emphasized, "Institutionally, related laws such as the Civil Procedure Act should be amended to establish provisions that can sanction refusal of expert opinions, intentional delays, and biased expert opinions, and the involvement of standing medical expert advisors (doctors) in medical trial procedures should be abolished to ensure the public's substantive right to a fair trial."
The Bar Association's Human Rights Committee stated, "Medical expert opinions, such as those on medical records or physical examinations, and trial procedures must have fairness, objectivity, and procedural appropriateness. However, medical expert opinions face serious issues not only regarding fairness and objectivity but also excessive delays in the expert opinion process itself," adding, "The courts, which lead the management of medical expert opinion procedures, do not accurately disclose statistical data related to the appropriateness of expert opinions externally, and medical expert institutions such as the Korean Medical Association, university hospitals, and general hospitals show a passive attitude toward resolving problems like delays, refusals, and high expert fees."
They continued, "These problems with medical expert opinions severely restrict or infringe upon the public's right to request a trial, ultimately threatening the rule of law in the medical field," and expressed deep concern that "while the public does not receive swift and fair trials by judges in the medical domain, they may be bearing considerable trial costs."
The Bar Association's Human Rights Committee urged, "The courts should accurately disclose statistics related to delays and returns of expert opinion responses to the public and devise solutions to ensure procedural promptness," and added, "Furthermore, to guarantee fairness and objectivity in medical expert opinions, a systematic training program for experts should be established, and experts should be prevented from issuing biased opinions favorable to doctors with the trial outcome in mind."
The Bar Association's Human Rights Committee argued that the current system of standing medical expert advisors, where doctors judge medical malpractice by other doctors, should be abolished.
They stated, "The current involvement of standing medical expert advisors in trials not only violates the litigation principle of nemo judex in causa sua (no one should be a judge in their own cause) but also lacks clear legal grounds; therefore, the courts should promptly abolish this system."
They added, "Although standing medical expert advisors have effectively intervened in trials, from 2019 to 2021, out of 152 cases where standing medical expert advisors were appointed, only 15 submitted opinions, depriving parties of the opportunity to impeach the advisors' opinions."
Additionally, the Bar Association's Human Rights Committee criticized the expert opinions conducted by the Korea Medical Dispute Mediation and Arbitration Agency, stating, "In these expert opinions, minority opinions are ignored, and standing expert advisors who are doctors and non-standing expert advisors who are currently practicing doctors predetermine conclusions biased toward medical institutions, persuading other members such as legal professionals and civil society representatives, which has drawn considerable criticism among practitioners regarding fairness."
They emphasized, "To prevent this, standing expert advisors should be appointed from non-medical backgrounds, and the expert opinion department should be required to prepare meeting minutes to prevent personal judgments of standing expert advisors from interfering."
Finally, the Bar Association's Human Rights Committee expressed regret, saying, "Medical expert institutions such as the Korean Medical Association and university hospitals, as expert groups, need to actively work to resolve issues like refusal, delays, and high fees for expert opinions," and added, "While medical expert opinions respect the perspectives of medical professionals on issues arising in the medical field, the current state of medical expert opinions makes one question the necessity of medical expert opinions themselves."
They further stressed, "The Korean Medical Association should collaborate with the courts to establish systematic training programs for experts to ensure fairness and objectivity in medical expert opinions and drastically improve the expert opinion procedures to prevent issues such as delays and returns."
On the same day, the Bar Association's Human Rights Committee attached a detailed opinion document on improving medical expert opinions, proposing specific improvements such as ▲ courts, which lead trial procedures and direct litigation, should grasp and disclose detailed data on delays, returns, and fee assessments of expert opinion procedures by expert institutions like the Korean Medical Association; ▲ manage to prevent delays in expert opinion responses by commissioning multiple expert institutions and urging prompt replies; and ▲ to clarify this, the Supreme Court should revise the Supreme Court Rules related to expert opinion procedures with specific and effective content.
They also proposed ▲ improving the practice of mandatorily conducting expert opinions, boldly omitting expert opinion procedures in cases where expert opinions are difficult due to excessive delays, returns, or absence of experts, and introducing practical measures to judge the presence or absence of legal requirements (trial conclusions) from a layperson's perspective; ▲ abolishing the standing medical expert advisor system, which unofficially intervenes in trials and causes distrust in judgments; and ▲ if intervention occurs, requiring the preparation of opinion statements and records to provide parties with opportunities to rebut.
The Bar Association's Human Rights Committee called on the Korean Medical Association to ▲ disclose accurate and detailed data to improve delays in expert opinion responses and high fees; ▲ establish systematic training programs to ensure experts conduct fair and objective opinions; and ▲ prevent biased expert opinions favorable to doctors with the trial outcome in mind.
Regarding expert opinions by the Mediation Agency, they urged ▲ preventing situations where a small number of expert advisors in specific specialties handle all cases; ▲ independently recording minority and dissenting opinions in expert opinion reports involving multiple expert advisors; ▲ refraining from conclusively judging negligence and causation in the expert opinion department; and ▲ since normative judgments belong to the Mediation Agency's adjustment department or courts, expert advisors, as assistants to judges (mediators), should minimize involvement in normative evaluations beyond advisory advice.
Lastly, to ensure fairness and objectivity of medical expert opinions, selection of expert institutions, returns, expert procedures, and appropriate expert fees, the Bar Association's Human Rights Committee proposed ▲ introducing provisions to hold experts accountable for damages caused by biased expert opinions due to intentional or negligent acts; ▲ mandatory rules preventing unjustified refusal of medical expert opinions; and ▲ specific regulations to manage delays and returns, to be incorporated into the Civil Procedure Act, Civil Procedure Rules, or administrative regulations, or if legal amendments are difficult, declarative provisions in the law with detailed rules in Supreme Court regulations or administrative rules.
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