[업무상과실치사][공2007하,1985]
[1] Occupational duty of a person responsible for the group management of a newborn baby in a postnatal care center
[2] The case holding that in a case where a newborn baby died because a person responsible for the management of a newborn baby group of a postnatal care center did not undergo a medical examination by a doctor, etc. even though a newborn baby who has been admitted to a postnatal care center continuously shows abnormal symptoms, such as her occupational negligence, the person responsible for the management of the said collective care center recognized the person responsible for the management of the said group
[1] The main duty of a postnatal care center is to ensure the recovery of the body of a newborn baby by providing appropriate meals, physical exercise methods, etc. to the newborn baby admitted, and to assist the newborn baby to concentrate on postnatal care by controlling the newborn baby in lieu of the same newborn baby. The group management of the newborn baby and the newborn baby is inevitably incidental to the provision of the postnatal care service and is not an act of medical treatment in itself. However, given the characteristics of health field due to the high possibility of harm to the life and body caused by infection of a disease by taking the newborn baby who is weak to be exposed to others as a group due to immunity, and thus, unlike the work of the postnatal care provided by the general public, a person responsible for the group management of the newborn baby, unlike the work of the postnatal care provided by the general public, shall have a higher level of knowledge than the general public on the health care or symptoms of the newborn baby, manage the newborn baby in a sanitary manner, and closely examine the health conditions of the newborn baby, and take appropriate occupational measures, such as medical doctor or herb doctor, etc.
[2] The case holding that in a case where a newborn baby admitted to a postnatal care center shows abnormal symptoms such as the excessive decrease in water volume and weight and frequent snow sheds, etc., but a person in charge of the group management of a newborn baby of a postnatal care center did not undergo a medical examination by doctors or oriental medical doctors, etc. and thus a newborn baby died of a newborn baby due to decrepiting or salmatitis, the above group management officer cannot be deemed to have fulfilled his duty of care on the ground that he did not immediately notify the newborn baby's abnormal symptoms to the newborn baby and sought appropriate measures by seeking the direction of the newborn baby, and thus, he cannot be deemed to have fulfilled his duty of care on the ground that he did not have fulfilled his duty of care on the part of the newborn baby's death.
[1] Article 268 of the Criminal Code / [2] Article 268 of the Criminal Code
Defendant 1 and one other
Prosecutor
Law Firm Site, Attorneys Han-soo et al.
Suwon District Court Decision 2004No2730 decided Feb. 18, 2005
The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.
The main duty of a postnatal care center is to ensure that a newborn baby's body can be recovered by providing appropriate meals, physical exercise methods, etc. to the newborn baby admitted, and that a newborn baby's body can be concentrated on postnatal care by providing them on behalf of the management of the newborn baby operated by the newborn baby. However, the group management of the newborn baby and the newborn baby is inevitably incidental to the provision of the postnatal care service. The group management of the newborn baby is not an act of treatment but an act of treatment but an act of treatment and management of the newborn baby whose immunity is weak to other people, thereby increasing harm to the life and body caused by infection of the disease. Therefore, unlike the work of the postnatal care provided by the general public, a person responsible for the group management of the newborn baby, unlike the work of the postnatal care provided by the general public, shall have a duty of care to take appropriate measures, such as taking care of the newborn baby's health care or symptoms with higher knowledge than the general public, and closely considering its health and health conditions.
위 법리에 비추어 기록을 살펴보면, 당시 산후조리원의 시설기준이나 인력기준 등에 관하여 법규를 통한 명시적인 규제가 없었다 하더라도, 공소외 1이 2002. 11. 12. 출산한 신생아(이하 ‘이 사건 신생아’라 한다)는 수유량이 같은 달 19. 580㏄에서 같은 달 24. 340㏄로 41.4%나 감소하였을 뿐 아니라, 출생 후 10일이 경과한 같은 달 22.까지도 체중이 3.1㎏으로서 출생체중인 3.36㎏를 회복하지 못한 상태에서 다시 체중이 감소하여 같은 달 26.에는 2.75㎏으로 4일 동안 11.3% 감소하였고, 같은 달 25.에는 배변횟수가 묽은 변 4회, 설사 3회를 포함하여 총 12회에 달하였으므로, 이 사건 산후조리원의 유일한 간호사들로서 산후조리원의 운영뿐 아니라 신생아실의 아기에게 이상이 발견되는 경우 병원에서 진찰받도록 하여야 하는지 여부 및 그 시기를 판단하는 업무를 담당하던 피고인들로서는 이 사건 신생아가 의사나 한의사 등 전문가의 진찰을 받을 수 있도록 조치를 취하여야 할 주의의무가 있음에도 불구하고, 전문가의 진찰을 받도록 하지 않은 채 오히려 이 사건 신생아의 질병을 치료하는 효과가 있는지 불분명한 포룡환이라는 약을 권유하고 그 후 일시적으로 설사 증세의 호전을 보이자 그대로 경과 관찰만 하였던 것은, 신생아의 집단관리 업무를 책임지는 사람으로서의 업무상 주의의무를 위반하였다고 보는 것이 상당하다.
In addition, even if there is a possibility that the newborn baby of this case would have died because it was not abnormal due to the collapse, but because it was likely that the infection of this case would have been damaged by the snow death of the newborn baby of this case and caused infection on the part of the damage. Therefore, whether the direct cause of death of the newborn baby of this case is a bullying infection is limited to the difference between the defendants' negligence and the middle route of the causal relation between the death of the newborn baby of this case, and as long as both the escape and the typitis are caused by the loss of the opportunity to provide appropriate medical treatment for the snow death, it is difficult to see that the above difference is an essential difference as long as the death of the newborn baby of this case is caused by the loss of the opportunity to receive medical treatment due to the negligence of the defendants. Accordingly, the death of the newborn baby of this case is caused by the loss of the opportunity to receive medical treatment by identifying the cause of the reduction in the body by the doctor, herb doctor, etc. of this case.
Nevertheless, the court below found the Defendants not guilty on the ground that it is difficult to recognize a higher level of duty of care than the general public with respect to the Defendants responsible for the group management of the newborn baby, without recognizing a higher level of duty of care for the newborn baby, and immediately inform the newborn baby of the abnormal situation and seek appropriate measures, and accordingly, it is difficult to conclude that the Defendants’ act fulfilled their duty of care according to the instruction, or that the Defendants’ act directly caused the death of the newborn baby in this case, which affected the conclusion of the judgment by misunderstanding the legal principles on the duty of care or proximate causal relation required for the person responsible for the group management of the newborn baby in
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-dam (Presiding Justice)