The night before surgery, a nurse handed over a consent form and the patient signed it. Yet that form omitted the most important complication that could occur during the operation, and the attending physician never explained the risk verbally either. After surgery, an unexpected and serious side effect appeared, and the hospital simply says, "But you signed the consent form." Many patients' families give up after hearing this. The courts, however, see it differently. A signature on a consent form alone does not establish that the doctor fulfilled the duty to explain, and once a breach of the duty to explain is found, separate consolation damages can be claimed regardless of any fault in the surgery itself. There is no need to give up.

1. Signing a Consent Form and the Duty to Explain Are Different Matters

A doctor's duty to explain is not simply the procedure of handing over a form and obtaining a signature. The courts require a doctor to directly explain to the patient ① the necessity of the surgery or procedure, ② the specific method and content, ③ the anticipated risks and side effects, ④ the consequences of not undergoing the surgery, and ⑤ alternative treatment methods, and to guarantee the patient enough time to understand these and choose for themselves (Medical Service Act Article 24-2 (의료법 제24조의2)).

(1) A formal printed consent form is not evidence that the duty to explain was met

Even if a signature was obtained on a standardized printed surgical consent form, where there is no evidence that the doctor personally explained the core matters verbally, the duty to explain is not deemed fulfilled. In a knee surgery case, the court found a breach of the duty to explain because the consent form omitted key complication information such as infection and there was no material to support the doctor's verbal explanation (Aug. 2024). In a spinal surgery case as well, the court held that a standardized printed consent form alone could not be regarded as fulfilling the duty to explain (Apr. 2026).

(2) Explaining on the day of surgery and going straight into the operating room is a breach

The duty to explain must be performed with adequate time to spare. The Supreme Court clearly held that "if a doctor proceeds to a medical procedure immediately after explanation, this infringes the patient's opportunity to choose whether to undergo the procedure, and the duty to explain cannot be regarded as fulfilled" (Supreme Court 2021Da265010, Jan. 27, 2022). Where a doctor briefly explains on the day of surgery and goes straight into the operating room, that in itself can constitute a breach of the duty to explain.

(3) The burden of proving the duty to explain rests on the doctor

The burden of proving that an explanation was given rests on the hospital and the doctor. It is not for the patient to prove that they "were not given an explanation"; rather, the doctor must prove that they "gave an explanation." Failure to prove this results in a finding of breach of the duty to explain (Supreme Court 2007Da5867, May 31, 2007).

2. Legal Norms You Should Know

(1) Consolation damages for infringement of self-determination: claimable even without surgical fault

The most important feature of a duty-to-explain lawsuit is that, even where there is no medical fault in the surgery or procedure itself, separate consolation damages can be claimed based solely on a breach of the duty to explain. The courts held that when claiming consolation damages arising from a breach of the duty to explain, it is sufficient to prove only that "the patient lost the opportunity to choose and was unable to exercise the right of self-determination," without having to prove a causal link that the outcome would have been different had an explanation been given (Supreme Court 2011Da29666, Apr. 26, 2013). In cases where fault is hard to prove directly, a breach of the duty to explain becomes an independent ground for the claim.

(2) Scope of the duty to explain: all foreseeable risks are included

A doctor must explain the risks anticipated in the relevant procedure in a way the patient can understand. For cosmetic procedures, the courts require a stricter duty to explain than for ordinary treatment. Regarding depressed scars and pigmentation arising from a CO2 laser acne procedure, the court found a breach of the duty to explain, stating that there was "a duty to explain in detail the necessity, difficulty, method, anticipated risks, and side effects of the relevant procedure" (Cheongju District Court 2021Na57296, Jun. 9, 2022).

(3) A guardian's consent form does not exempt the duty to explain to the patient

Even if a guardian signed the consent form, the duty to explain to the patient personally is not exempted. Where the patient has decision-making capacity, the doctor must explain directly to the patient. In a deep brain stimulation case, the court held that a guardian's consent alone was not sufficient and awarded consolation damages of 450 million won (Seoul Central District Court, Jul. 2024).

(4) A separate post-operative duty of instructional explanation also exists

The duty to explain does not exist only before surgery. Matters to be careful about during post-operative recovery, guidance to come to the hospital immediately when abnormal symptoms arise, and guidance on the need for additional tests and treatment are also the doctor's duties. Where a post-operative duty of instructional explanation is not performed and the patient loses the opportunity for appropriate treatment, separate liability for damages arises.

3. When the Duty to Explain Is Denied: Limits of the Hospital's Defenses

The courts do not accept every claim of breach of the duty to explain. You need to understand the defenses hospitals frequently use and their limits.

(1) "A bad surgical outcome is not a breach of the duty to explain"

The mere fact that a side effect occurred after surgery does not automatically establish a breach of the duty to explain. If the doctor adequately explained the side effect in advance, then even if the side effect occurred, it is not a breach of the duty to explain.

(2) "Unforeseeable rare side effects are not subject to the duty to explain"

Extremely rare complications that were unforeseeable at the medical standard of the time may be excluded from the scope of the explanation. However, the general position of the courts is that even where the probability of occurrence is low, an explanation must be given if the consequences are grave.

(3) The difference between consolation damages and direct damages

A breach of the duty to explain alone makes it difficult to claim the damages from the surgery itself (lost income, medical expenses, etc.). Consolation damages for infringement of self-determination can be claimed, but to be compensated for property damage resulting from the surgical outcome, medical fault in the surgery itself must be separately proven.

4. Evidence Strategy in Duty-to-Explain Lawsuits

The most important thing in a duty-to-explain lawsuit is the record of "what the doctor explained."

(1) The original consent form and handwritten records

Secure the original surgical consent form. Check whether the form is a standard printout, or whether the attending physician personally added content by hand (手記) or signed it. The courts regard the attending physician's handwritten records as strong evidence of fulfillment of the explanation.

(2) Medical records and explanation records

Check whether the medical records state the content and time of the explanation. If the date of explanation is the same as the day of surgery, a breach may be claimed as an explanation given without adequate time (Supreme Court 2021Da265010).

(3) Statements of family members present at the explanation

If there were family members present at the explanation, their statements become strong evidence. It is important to remember concretely what the doctor said and what the doctor did not say.

5. Practical Checkpoints

• Whether you have confirmed that the doctor personally explained the side effects verbally before the surgery or procedure, and that there was time to spare for deliberation (explanation on the day of surgery followed by immediate entry into the operating room carries a high likelihood of breach) (Supreme Court 2021Da265010).

• Whether you have confirmed that the surgical consent form bears the attending physician's signature and handwritten records, or whether only the patient's signature appears on a standardized printout (a printed consent form alone carries a high likelihood that fulfillment of the duty to explain will be denied).

• Whether you have confirmed that the complications and side effects that occurred were specified in the consent form (if there are omitted complications, a claim of breach of the duty to explain is possible) (Aug. 2024 knee surgery case).

• Whether, even in a case where medical fault in the surgery itself is hard to prove, you have considered a strategy of separately claiming consolation damages for infringement of self-determination arising from a breach of the duty to explain (proving the loss of the opportunity to choose alone suffices) (Supreme Court 2011Da29666).

• Whether, even where a guardian signed the consent form, you have considered whether a breach of the duty to explain directly to the patient can be asserted if the patient had decision-making capacity (Seoul Central District Court, Jul. 2024 deep brain stimulation case).

• Whether you have confirmed, together with the medical records, whether a breach of the post-operative duty of instructional explanation (such as failure to notify of the need for follow-up tests) can also be separately claimed (the duty to explain is not solely a pre-operative matter).

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The phrase "But you signed the consent form" is not a legal basis for the hospital's exemption from liability. The hospital must prove that the duty to explain was fulfilled, and if it fails to do so, liability for consolation damages arises regardless of whether there was fault in the surgery itself.

Our firm handles, from analysis of the surgical consent form to proof of breach of the duty to explain and claims for consolation damages for infringement of self-determination, medical accident cases you were about to give up on, reviewing them from a new angle and taking them on through a one-stop service.