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"I signed the consent form before surgery, so is there nothing I can do?" It is the question we hear most often in medical accident consultations. The short answer is that a signature alone does not extinguish the hospital's liability. What the law actually examines is not whether you signed, but whether the explanation was sufficient.

[Contents]

1. A consent form is not a hospital's get-out-of-jail card

2. What a doctor must explain, and how far

3. If the explanation fell short: damages for lost self-determination

4. Going beyond consolation money to full damages

5. What patients and families should secure in practice

1. A consent form is not a hospital's get-out-of-jail card

A pre-operative consent form is a record that an explanation was given, not a waiver of liability for everything that may follow.

Courts therefore look past the signature and ask whether the doctor substantively explained the risks and the alternatives beforehand. Where a form was simply handed over for signature with no real explanation, the duty to explain is not treated as fulfilled.

2. What a doctor must explain, and how far

Article 24-2 of the Medical Service Act requires a doctor performing surgery, a transfusion or general anaesthesia that may seriously endanger life or body to explain the following and obtain written consent:

• the diagnosis of the symptoms the patient has or may develop;

• the necessity, method and content of the procedure;

• the name of the explaining doctor and of the principal doctor performing the procedure;

• the after-effects or side effects typically expected from the procedure; and

• what the patient must observe before and after the procedure.

Case law goes further. The Supreme Court has held that a doctor must give a concrete explanation of the matters a patient would consider important in making a decision — the symptoms of the illness, the content and necessity of the treatment, and the foreseeable risks and side effects, judged against the medical standards of the time — so that the patient has the opportunity to decide for themselves (Supreme Court, 9 March 2023, 2020Da218925).

3. If the explanation fell short: damages for lost self-determination

Where a serious outcome follows a procedure performed without a proper explanation, the patient has been deprived of the chance to choose. The right infringed is the right of self-determination, and it is compensated by consolation money (wijaryo).

The burden of proof matters here. The Supreme Court has held that where only consolation money for the infringement is claimed, it is enough to prove the loss of the opportunity to choose; the patient need not prove that the bad outcome would not have occurred had the explanation been given (Supreme Court, 26 April 2013, 2011Da29666).

In other words, consolation money may be awarded for a breach of the duty to explain even where no negligence in the treatment itself is established.

4. Going beyond consolation money to full damages

Recovering all losses flowing from the outcome — medical expenses, lost earnings and so on — is a much heavier task. The 2011Da29666 decision requires two things:

1. Proximate causation between the serious outcome and the breach of the duty to explain (or the flaw in obtaining consent); and

2. Gravity of the breach — the breach must be equivalent to a violation of the duty of care required in the concrete course of treatment.

The same decision drew the opposite boundary as well: where no treatment negligence is found and only the duty to explain was breached, courts must not use consolation money as a disguised route to compensate pecuniary loss. That is why an award can feel modest even after a breach is recognised.

5. What patients and families should secure in practice

First, obtain a copy of the consent form. Article 24-2(3) allows a patient to request a copy, and the doctor may not refuse without justifiable grounds. Which items are recorded as explained often becomes the decisive evidence.

Second, a change of surgeon or method must be notified in writing. Article 24-2(4) requires the reasons and content to be given to the patient in writing where the method or content of the procedure, or the principal doctor taking part, changes after consent was obtained.

Third, minors are a special case. The Supreme Court held that a minor with decision-making capacity is in principle entitled to an explanation; ordinarily the duty is satisfied when the explanation given to the parent or legal representative is passed on, but where it is clear that it will not reach the minor, or the minor actively refuses the procedure, the doctor must explain directly to the minor, in terms suited to their age and understanding (2020Da218925).

Fourth, secure the records early. Consent forms, medical and nursing records and the accounts of anyone present at the explanation become harder to obtain as time passes.

In summary

A consent form is not a waiver, and a breach of the duty to explain does not automatically mean full compensation. The recoverable scope turns on how deficient the explanation was and how it connects to the outcome.

Cheongchul Law Firm has handled numerous medical negligence, delayed diagnosis and post-operative complication cases, supporting clients from analysis of medical records through expert appraisal and litigation. If you doubt whether the pre-operative explanation was adequate, seek a review based on the consent form and medical records while they are still available.

This post is provided for general information only and does not constitute legal advice on any specific matter. Outcomes depend on the facts, the evidence and expert appraisal in each case, so please consult a lawyer.