DISCUSSION
In medical malpractice litigation in South Korea, the patient bears the burden of proof in demonstrating that negligence on the part of the doctor caused damage. It is also the patient’s responsibility to prove that the damage was caused illegally, which is not easy. Moreover, when a medical accident occurs that is beyond the control of the doctor, a court may nevertheless render a decision that is unfair and that unfavorably acknowledges the doctor’s negligence on the basis of the legal principle of factual presumption. It is difficult to make a judgment on a medical malpractice case. Thus, the reliability of court judgments is sometimes questioned [
8]. Furthermore, filing a lawsuit is not an attractive solution for either party because prolonged litigation may cause both parties to suffer mental and physical exhaustion in addition to high litigation costs [
9]. Various alternative dispute resolution systems have been introduced to address this problem. However, these systems require time for application and mediation procedures to take place and are limited in satisfying the interests of both parties [
10]. Therefore, the most desirable way for resolving a dispute that arises from a medical accident is through an amicable settlement between the parties, rather than through a medical dispute mediation system.
Plastic surgeons perform cosmetic surgery more often than they treat diseases [
11]. They, therefore, face relatively more complaints from patients about surgery-related matters than those in other medical departments [
12,
13]. However, unlike other medical practices, cosmetic surgery is often not suitable for medical litigation, as discrepancies commonly exist between a patient’s personal feelings about beauty and a third party’s view as to the results of the cosmetic surgery. There is also often nothing to be gained by filing a lawsuit because of the small indemnification amount. Moreover, it is not always guaranteed that a patient will win a lawsuit because a negative surgical outcome does not always indicate medical malfeasance. Therefore, when a dispute arises, the parties should first try to reach a settlement before taking legal action. In other words, when a dispute arises from a negative surgical outcome, the parties should first attempt to find a compromise and to end the dispute early, mainly by focusing on the negative outcome without inquiring into its exact cause or the existence of negligence. A hospital may occasionally predict a clear causal relationship between a medical treatment and a negative outcome, to which it admits its fault and seeks a settlement. A hospital may even seek a settlement when a causal relationship is not clearly recognized in order to avoid damages from a dispute with the patient. In this case, the parties prepare a settlement agreement according to the patient’s covenant not to subject the hospital to civil and criminal liabilities as long as the hospital pays the patient in the form of settlement money, a refund of medical expenses, repeat surgery expenses, or paid medical expenses.
While the covenant not to sue is not recognized in administrative litigation, it is still effective in general civil litigation in South Korea. Nonetheless, notwithstanding the covenant not to sue, there are still many cases of litigation brought on by one of the parties. Any lawsuit filed in violation of a covenant not to sue is, in principle, subject to dismissal by reason of having no merit in the claim for protection of rights [
14]. However, a covenant not to sue does not always turn out to be effective. The covenant not to sue is also a kind of contract, and it, therefore, should be effective. The covenant not to sue is frequently executed in South Korea in the field of plastic surgery, thus, this study examined relevant court precedents in order to review what requirements must be satisfied to ensure that the covenant not to sue is effective.
Court precedents that were subject to this study showed that the covenant not to sue was prevalent in every field of cosmetic plastic surgery. Patients and doctors generally entered into a settlement agreement in order to settle a dispute early that arose from a negative surgical outcome, regardless of medical negligence. Courts did not presume medical negligence based on the existence of a settlement agreement, and medical negligence was not recognized in court cases when the effectiveness of the settlement agreement was denied. In other words, a settlement agreement may be advantageous to a doctor insofar as the preparation of the settlement agreement alone does not provide a basis for finding medical negligence. Furthermore, if the effectiveness of the settlement agreement is recognized, the doctor is not liable for any additional payments other than settlement money upon occurrence of additional damages.
In order for a covenant not to sue to be established effectively in a Korean civil court, it is generally required (1) to be within the scope of rights that can be freely exercised by the parties, (2) to be reached by fair methods, (3) to apply to a situation or circumstance that is predictable by each party at the time of settlement, and (4) to be limited to a specific relationship between rights and obligations (any overbroad settlement clause is invalid). Once the covenant not to sue satisfies the foregoing requirements, it comes under strong protection [
15]. The court precedents of the cosmetic surgery cases in this study showed that even when the covenant not to sue was executed, the doctors bore additional liabilities because the effectiveness of the covenant was not recognized due to its failure in satisfying the foregoing requirements.
If the covenant not to sue itself has no problems in terms of its contents, its effectiveness may be denied if either of the parties are deemed unqualified. In other words, the covenant not to sue is deemed to have been effectively executed only if it was reached within the scope of rights freely exercised by the parties. Therefore, any covenant not to sue that is executed on behalf of a patient by a third party with no rights is invalid. In one case where a doctor and the guardian of a patient (the patient’s husband) had entered into a settlement agreement, the court dismissed the doctor’s motion that was based on the covenant not to sue on the grounds that the covenant at issue was not effective for the patient since it had not been prepared by the patient herself and that there was no justifiable reason to believe that the patient’s husband had the power of representation [
16]. It is, therefore, desirable for a doctor to enter into a settlement agreement with a patient directly, and if the doctor must inevitably enter into an agreement with the patient’s family or any other third party, it is advisable for the doctor to check a representation agreement in order to confirm proper entrustment of the power of representation.
There were cases where the covenant itself was found to have been executed unfairly. In one case, the doctor had explained that the inflammation and skin necrosis that were occurring after augmentation mammaplasty were caused by the patient’s smoking. Furthermore, the doctor coerced the patient into preparing and signing a letter of apology and a letter of waiver before treating the complications, threatening that treatment would be withheld until the patient signed the letter of waiver. In this circumstance, the court ruled the covenant to be invalid pursuant to Article 104 of the Civil Act of South Korea, deeming that it constituted a juristic act that had conspicuously lost fairness through the strained circumstances, rashness, and inexperience of the plaintiff [
17]. A doctor should not lay the fault of any post-surgery side effects or negative outcomes on a patient by taking advantage of the patient’s ignorance. If a negative outcome can be partly attributed to a patient, the doctor should draw up a settlement agreement that reflects the relevant liability of the patient.
Furthermore, the covenant not to sue is effective only when it applies to a situation or circumstance that is predictable at the time of the agreement. This indicates that the covenant not to sue may lose its effectiveness with respect to unpredictable circumstances. In one case where a patient suffered from skin necrosis after a filler injection, the court recognized a severe discrepancy between the damage that was anticipated at the time of entering into the settlement agreement and the amount of actual damage following the surgery. The patient entered into the agreement with the expectation of only a slight scar but ended up losing both nostrils. In other words, if the patient enters into a settlement agreeing to accept an insufficient compensation proposed by the doctor because it was difficult for the patient to ascertain the actual extent of the damages, the settlement agreement is no longer applicable for any unpredictable extra damage occurring after the settlement. It is, therefore, advisable for doctors to propose compensation after the damage is partially or fully fixed, rather than proposing compensation before the damage is fixed and only under consideration of minimizing the settlement amount and bringing the dispute to an early resolution. Doctors must accordingly provide an adequate explanation to their patients about the potential complications at the time of the settlement [
18].
The court precedents in this study showed that there were no attorneys involved during the settlement process. Higher rates of settlements would unquestionably be recognized by the courts if attorneys were involved with the patients’ claims against the covenant not to sue during the settlement. However, there is a high attorney fee for involving an attorney during the settlement process, and, thus, its cost-effectiveness should be further evaluated. Moreover, the involvement of an attorney in the settlement process differs between South Korea and the United States due to the cultural commitment to Confucianism in Korea. A successful settlement might also be difficult to reach when involving an attorney, as patients generally believe that doctors are attempting to hide malfeasance when they choose to involve an attorney in the settlement process.
There are 22 million people in the Seoul metropolitan area, equaling roughly half of South Korea’s total population (the area of South Korea is 99,720 square kilometers, smaller than the state of Ohio in the United States). Likewise, 66% of all plastic surgeons work in the Seoul metropolitan area and 54 precedents (79%) in this study occurred in this region. The effectiveness of settlements was not found to have a statistically significant association with the distribution of plastic surgeons (P=0.685) or the distribution of the population (P=0.999). Moreover, there was no statistically significant association between geographical area and the effectiveness of settlements (P=0.865). In other words, the effectiveness of a settlement relies on a fair process and the fulfillment of the aforementioned requirements.
The timing of a settlement may be of interest to the physician. We found that there was no meaningful statistical relationship between the timing of a settlement and its effectiveness (P=0.602). Most settlements in this study (93%, 63 cases) occurred before the patient fully healed, as settlements usually concern resolving a problem that develops after primary surgical/nonsurgical procedures through monetary and physical compensation. This also explains why the most important factor of a settlement agreement is a fair and just process.
We found another interesting result in this study. The settlement for fee-free reoperations and covenant not to sue was a generic type of settlement. However, the relationship between a fee-free reoperation and the compensation amount was not statistically significant (P=0.857) when the settlement was not recognized by the court. One might believe that having a fee-free reoperation prior to a medical litigation would be considered by the court in determining the compensation amount. However, this was not the case. The surgeon should understand that a fee-free reoperation is neither mandatory nor an economically sound decision. This result also suggests that doctors should settle thoroughly, as it is a better economic strategy.
A settlement agreement is merely a means of stating the explicit intentions of both parties. Its contents are of paramount importance and they must be legitimate and as specific as possible. A settlement agreement that contains terms that are unclear or sets in motion an ambiguous compensation plan may lead to a legal dispute later. As an example, a statement that the doctor will assume liability for the payment of all medical expenses or for all repercussions of a procedure is not clear and may allow the patient to adopt a different point of view later on. This can consequently renew a dispute. In one of the court cases in this study, the doctor obtained the signature of a patient for the statement “the patient will not hold the hospital liable for any abnormality occurring during the procedure” on the medical records. The civil court in South Korea did not acknowledge the effectiveness of this covenant on the basis that the statement was too broad and was not an adequately concrete agreement. Therefore, when preparing a settlement agreement, it is advisable to review the contents thereof, rather than to take the preparation of a settlement agreement per se as legally meaningful. Parties must prepare a legally binding settlement agreement. Therefore, they should be careful not to execute any settlement agreement that is legally meaningless, which is just a waste of paper.
In conclusion, doctors that are drafting a settlement agreement to end a medical dispute should keep in mind the following considerations. First, a settlement should be made with the counterparty to the dispute. If that is not possible, a lawfully authorized agent should be involved. Second, it is prohibited to fault the patient without revealing any medical malpractice and to induce the patient to enter into a disadvantageous settlement. Third, the scope of the settlement should be limited to complications that can reasonably be predicted at the time of drafting the settlement agreement. This means that doctors should readily take sole responsibility for any unpredicted complications that occur after the settlement, as they fall outside the scope of the settlement. Lastly, doctors should avoid encouraging patients to enter into a settlement in order to end their relationship. They should also assert that early prevention of a dispute is necessary, even if complications have not yet been addressed with the patient. Patients generally decide to initiate litigation against their doctor in violation of the covenant not to sue not simply because a complication has occurred, but mainly because they have lost confidence in their doctor. If malpractice by a doctor occurs, the doctor should share the matter with the patient, apologize, and try to amicably resolve the dispute with the patient. If a doctor is blamed unfairly for a patient’s late recovery despite his or her best efforts, it is important that the doctor continue to maintain communications with the patient and preserve the confidence of the patient. Nevertheless, medical disputes may arise. After experiencing a single medical dispute, doctors tend to feel intimidated when treating patients, and it may take time to regain self-confidence. Lack of basic knowledge of the law may increase the likelihood of medical disputes. Therefore, doctors should acquire a basic knowledge of the law in order to prevent medical disputes and to treat patients confidently.