Civil Liabilities of Fertility Fraud: Focusing on the Decision from the Court of Appeals of Indiana in the United States

Abstract

Medical practice is an integral part of most people’s lives in the era of a 100-year lifespan. The slogan ‘From Cradle To Grave’ used in social welfare is very close to medical contracts in this era. Although each modern person can be a party to medical contracts, a physician who is another party to medical contracts controls and manages all professional aspects of the contracts. It is hard to say that all physicians responsible for providing their patients with all relevant information have observed the doctrine of informed consent guaranteeing the right of patients. Since abuses of medical practice could happen secretly, a patient could not recognize what happened during medical practices in time. Indiana Court of Appeal dealt with a specific case about the medical practice abused by a physician of fertility treatment. In this case, a plaintiff could not bring a suit about all relevant issues because it is challenging to discover a substantive truth about medical malpractice. The exceptional theory of statute of limitation for medical contracts or malpractice could redress these constraints of time. However, this exceptional theory cannot be applied to intentional tort cases; thus, abuses of medical treatments caused by intent cannot be redressed by the court. The U.S. of academia has dealt with the issues regarding how to redress abuses of fertility treatment. Therefore, State legislators have made an effort to establish the exceptional theory of statute of limitation for fertility treatment and liquidated damages. In light of the actual truth about the case’s medical malpractice and abuses of medical practice, it would happen internationally, including in South Korea. Therefore, not only is the purpose of this paper to analyze the case and explore its issues of civil liabilities, but it also contributes to legal discourses on medical practice in South Korea.