Ulsan-gu

Law Firm *

[Defendant-Appellant]

Daegu Southern-gu

One Chief Director (one Chief Director)

Law Firm *

Attorney Kim*, right*

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

A. The Defendant is an educational foundation that operates a hospital affiliated with ○ University (hereinafter “Defendant hospital”).

B. Around 02:00 on October 2, 201, the Plaintiff returned to the emergency room of the Defendant hospital, after hearing an explanation that the Plaintiff was able to visit the emergency room of the Defendant hospital, and that the Plaintiff did not seem to have any particular opinion any longer as a result of taking brain-related photographs from the physician affiliated with the Defendant hospital.

C. On October 3, 201, the following day, at least 03:44, the Plaintiff was sent back to the emergency room of the Defendant hospital, and the doctor affiliated with the Defendant hospital diagnosed that there was symptoms of probamination to the Plaintiff was carried out coloring surgery against the Plaintiff. However, the Plaintiff did not shoulder for about three hours, and the doctor affiliated with the Defendant hospital did so in order to treat cerebrovassis caused by the Plaintiff’s cerebralopsis during the implementation of the above coloring surgery, and the doctor affiliated with the Defendant hospital carried out two thalopical surgery and the malopical malopsis with the Plaintiff.

D. Since then, the Plaintiff received medical treatment in a middle-patient’s room for about one month since he/she failed to find consciousness, and received hospitalized treatment even after he/she returned to consciousness (hereinafter “instant medical accident”).

E. In relation to the instant medical accident, the Plaintiff filed a claim for damages with the Defendant Hospital, and the Defendant Hospital requested medical review to the Korea Medical Analysis Institute, and the Korea Medical Analysis Institute sent a reply on December 26, 201, on the responsibility of the Defendant Hospital and the Plaintiff’s state at the time, and on the possibility of future defense are as follows.

The overall treatment process of the defendant hospital is presumed to be the most problem that the plaintiff was presumed to be the largest problem that the first hospital was unable to accurately conduct the diagnosis before the first hospital was implemented, and it is presumed that the patient was in a critical condition after the coloring surgery, i.e., an immediate operation (dual e.g., the operation is not appropriate).It is presumed that the time of operation is not appropriate.It is presumed that the plaintiff's current state of the plaintiff's current state of life, recognition function degradation, horses can be identified, the situation where the plaintiff's expression of opinion is possible, the movement condition of the wheelchairs with the other person's help, the situation where the plaintiff can receive the other person's help without any other person's help, the situation where the patient could wear the other person's meals in the future without any other person's help, the situation where the patient could wear the urine and the condition of the other person's hair in the future without any possibility of any other person's help, and 3 months after the outbreak of the case can not be accurately mentioned.

F. The written disability diagnosis of the Plaintiff prepared on May 21, 2012 by the Defendant Hospital stated that “the rate of loss of labor ability is 54% due to brain damage,” and that “the future medical treatment estimation is stated as follows: “the treatment cost for the last three years is approximately KRW 82,394,496, and the nursing is deemed necessary for 4 hours a day for three years during which rehabilitation treatment is provided.”

G. On September 6, 2012, the Defendant hospital received an appraisal opinion against the Plaintiff from Seo-jin Co., Ltd., Ltd., and its content is as follows:

Scope of compensation for damages: 54% of the loss rate for 33 years labor capacity: 54% of the total amount of 43,388,706 won for rehabilitation treatment, 13,949,052 won for medication treatment, and 57,37,758 expenses for nursing care: 58,764,866 (the date of the accident - the period of hospitalization - the period of 8 hours for 8 hours a day an adult, the recognition of nursing care expenses for 4 hours a day - the limitation of liability - 70% - the amount of 3,200,000 won : 45,00 won for rehabilitation treatment, 764,866 won for - the period of 8 hours a day - the amount of damages for 3 hours a day - the amount of damages for 4,50,000 won : 184,7838,200 won - the total amount of damages for 45 million won

H. On September 12, 2012, the Plaintiff and the Defendant Hospital agreed to the following terms (hereinafter “instant agreement”), and the Plaintiff discharged the Plaintiff from the Defendant Hospital on October 30, 2012.

1. The Defendant hospital pays 180,000,000 won to the Plaintiff’s medical dispute, and reduces the total amount of the medical expenses of the Defendant hospital from October 2, 201 to the discharge.2. On October 3, 2011, the Plaintiff and his/her family members were at the Defendant hospital on October 3, 201, the Plaintiff was fully informed and understood of the side effects caused by cerebralopty and cerebraloptysis and cerebraloptysis after the maloptymosis, and the maloptysis after the maloptymosis, and do not raise any objection to the Defendant hospital and relevant medical personnel in the future.

I. Around August 2019, the Plaintiff sent reply that, as of August 2019, the Plaintiff’s recognition function disorder, language function disorder, malibbial condition (hereinafter “final disability in this case”) and these symptoms appear to have been caused by cryposis in accordance with cerebral Macro fever, and that the ability to work is presumed to have been lost by 100% due to extreme brain damage and legacy.

(j) The Medical Advisor of the Korean Medical Association appears to have been gradually conducted over several years in accordance with the records of outpatients, etc., and it was difficult for medical professionals to predict the aggravated status of the Plaintiff, even if they were medical professionals, and the Plaintiff and their families were also difficult to predict.

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, and 4 (including serial numbers; hereinafter the same shall apply)

2. Judgment on the main defense of this case

A. Summary of the defendant hospital's assertion

In relation to the instant medical accident, the Plaintiff and the Defendant Hospital agreed that the Defendant Hospital paid KRW 180,00,000 to the Plaintiff with respect to the instant medical accident, and that the Plaintiff would not raise any civil and criminal objection in the future. As such, the Plaintiff’s lawsuit in this case is unlawful in violation of the Appellate Agreement.

B. Specific determination

1) In regard to tort damages, when the perpetrator and the victim agree to receive a certain amount of amount and waive the remainder of the claim, they cannot claim compensation again after the occurrence of the damage. However, it is difficult to accurately confirm the scope of the damage because the agreement was not long after the accident, which is the cause of the damage, and it is difficult to predict the extent of the damage in light of the circumstances at the time of agreement. As such, it is reasonable to view that the parties would not have reached a settlement in terms of social norms if they anticipated the damage after the occurrence of the damage. If the damage was significant, the intent of the parties cannot be deemed to have renounced their right to claim compensation, and thus, it shall be deemed that the parties can claim compensation again (see Supreme Court Decision 9Da63176, Mar. 23, 200).

2) In light of the above legal principles, the agreement in this case was concluded in a situation where it is difficult to accurately verify the scope of damage caused by the instant medical accident, such as medical expenses and nursing expenses (hereinafter “the instant additional damage”) at the time of the agreement, and it is reasonable to view that, if the Plaintiff predicted the circumstance that the instant additional damage would have occurred, it would have not been agreed upon with the instant amount, as it would have been reasonable to deem that the instant additional damage would not have been agreed upon. Accordingly, the effect of the agreement in this case should not be reached with respect to the instant additional damage. Accordingly, the main defense of the Defendant Hospital is without merit.

A) As a result of the examination conducted by the Korea Medical Intelligence Service and the future medical expense estimate prepared by the Defendant hospital, there are expressions such as “the possibility of preference after a sufficient period of not less than 18 months,” “for three years after the end of the period, three years after the end of the period, and three years after the rehabilitation treatment.” According to this, it can be known that the degree of disability inflicted on the Plaintiff was not determined even around that time. However, the agreement of this case was reached at the point where the medical accident of this case was not occurred and not more than 11 months, and it is difficult to accurately confirm the scope of damage caused by the medical accident of this case.

B) It can not be said that both the Plaintiff and the Plaintiff’s family members, who were in the foregoing situation, could not expect the occurrence of additional damages as at the time of the instant agreement. In particular, this is more true in view of the fact that the Plaintiff and the Plaintiff’s family members are general people who are not familiar with the medical knowledge and legal knowledge. In the inquiry reply to the fact inquiry about the Director of the Medical Appraisal Board of the Korean Medical Association, it was difficult to predict exactly the doctor’s opinion, and the Plaintiff and their family members were also difficult to expect.

C) At the time of the conclusion of the instant agreement, the Plaintiff appears to have been in a state of being able to engage in basic physical activities without any other person’s aid and communicate with other persons. However, according to the result of the physical examination commission with respect to the East Asia University Hospital, the Plaintiff is currently unable to engage in basic physical activities, and is in a state of being unable to communicate with other persons. Since there is a significant difference between the Plaintiff’s status and the present state of the Plaintiff at the time of the conclusion of the instant agreement, it is difficult to view that the agreement received from the Defendant Hospital as a matter of social norms is reasonable.

3. Occurrence of liability for damages;

A. The defendant hospital's liability for damages

1) According to the above basic facts, the instant medical accident was caused by the physician at the Defendant hospital’s failure to conduct accurate diagnosis to the Plaintiff who was within the Defendant hospital, and the Plaintiff’s cerebral typhism occurred in the course of performing co-operation with the Plaintiff, and it can be deemed that the instant medical accident was caused by the negligence that delayed implementation of the Plaintiff’s typhical typhism and typhical typhism with respect to the Plaintiff.

2) In light of the following circumstances, which can be seen as having contributed to the Plaintiff’s final disability in the process of receiving treatment, other than the instant medical accident, in light of the fact that there is no circumstance to deem that the Plaintiff contributed to the Plaintiff’s final disability in the process of receiving treatment, there is a proximate causal relation between the negligence of the doctor affiliated with the Defendant Hospital and the instant additional damage.

3) Accordingly, the Defendant hospital is liable to compensate the Plaintiff as an employer of its affiliated doctor for the damages incurred by the Plaintiff.

B. Limitation on liability

However, since the date of the instant medical accident, it appears that the Plaintiff’s body and recognition degradation appears to have been gradually carried out over several years (i.e., the Plaintiff’s loss rate of labor capacity per period). The Plaintiff was over the period of April 2013, and went through an operation by suffering sacrine, and it appears that it would have been occurred frequently thereafter. The possibility of partly affecting the Plaintiff’s condition may not be ruled out, and other factors such as the inherent difficulty and risk inherent in the medical act, it is reasonable to limit the Defendant’s liability for damages to 70% for the fair and reasonable allocation of damages.

4. Scope of liability for damages

(a) The method of calculating damages;

1) In a case where the agreement on the waiver of right or the agreement on the waiver of right or the so-called agreement on the waiver of right that the victim and the victim would receive a certain amount and waive the remaining claim or would not raise any objection against the perpetrator in the future, even though the victim may claim additional damages for the subsequent damage that occurred after the agreement by limiting the validity of the agreement through a reasonable interpretation of the parties' intentions, the above agreement still remains effective. Thus, even in this case where the agreement on the waiver of right and the agreement on the denial of the claim were made, the scope of damages that the plaintiffs may seek for additional damages is still effective among all damages, including passive damages and consolation money that the plaintiffs suffered due to additional disability after the agreement in this case is reached, that is, the part of damages that the plaintiffs knew or could have known at the time of the agreement shall be deducted from the relevant damage item (see Supreme Court Decision 9Da7046, Jun. 22, 199).

2) The basis for calculation, expenditure, calculation, and amount of the Plaintiffs’ property, mental damage caused by the instant accident are as follows (However, it shall be calculated at the present price at the time of the instant accident according to the simple discount method deducting intermediary interest at the rate of 5/12 per month). It shall be rejected that the parties’ assertion did not separately state.

[인정 근거] 다툼 없는 사실, 갑 제2, 10호증, 을 제1, 2호증의 기재, 동아대학교병원장의 각 신체감정회보결과, 의료법인 동원의료재단 ●●병원장, ◎◎요양병원장, 의료법인 동원의료재단 ◇◇병원장, 의료법인 청남의료재단 ◆◆요 양병원장에 대한 각 사실조회 회신결과, 변론 전체의 취지

(b) Daily income;

1) Personal information

○ Gender, Date of birth: Women's, 1960, their age at the time of an accident: The age at the time of an accident: 51 years of age and 18 days of age: The date at which she reaches the age of 51: October 27, 203

○○ Maximum working age and working days: By April 14, 2025, from April 22, 2025, the maximum working age and working days.

○○ Income: The daily wage of the ordinary urban workers [the Defendant hospital is unfair that the Plaintiff uses the urban daily wage as the basis for calculating the actual income at the time of the accident, and that recognizes the number of working days as the 22th day of each month when considering the monthly average working days of non-regular workers or temporary-employed workers aged 60 years or older at the time of the accident is also contrary to the empirical rule. However, it is presumed that the above assertion by the Defendant hospital does not accept the Plaintiff’s allegation that the income can be earned at least from the government’s unit wage to the non-regular workers, minors, students, family-employed workers, etc. residing in the urban area at the time of the accident (see, e.g., Supreme Court Decision 91Da9602, Jun. 25, 191). The number of working days of temporary-employed workers in light of the empirical rule, and the evidence submitted by the Defendant hospital alone does not necessarily admit that the Plaintiff’s working days should be set differently from the empirical rule.]

2) Ratio of loss of labor capacity

A) The rate of loss of labor ability due to the instant final disability: Two parts of the Mabrid disability assessment table, brain, 100% mutatis mutandis applied in Section 1 X-B-4, permanent,

B) The labor capacity loss rate, which is the basis of the agreement in this case: two copies of Mabrid disability assessment table, brain, x-B-3(3), permanent 54% of Mabrid disability assessment table,

(iii) calculation;

The Plaintiff’s loss of lost income calculated according to 100% of the final disability as shown in Appendix 1 is KRW 302,288,33 (hereinafter “actual income due to the final disability”) as shown in Appendix 1. The loss of lost income pursuant to 54% of the existing disability that could have been predicted at the time of the instant agreement is KRW 172,490,148 (hereinafter “actual income due to the existing disability”) as described in Appendix 2. Pursuant to the above legal principles for calculating the loss of lost income pursuant to the above legal principles, the loss of lost income is 129,798,185 won (=302,28,33 won -172,490,148 won).

(i) Wrons treatment expenses;

A) The Plaintiff asserts that, after the discharge from the Defendant Hospital, the Plaintiff sought payment of KRW 18,464,850 for the principal’s charge among the medical expenses incurred from the medical treatment received from the medical institution. The Defendant Hospital asserts that, among the total medical expenses incurred from the treatment received by the Plaintiff, the amount responsible for the Defendant Hospital should be deducted from the amount that the Plaintiff can claim against the Defendant Hospital.

B) In light of the above, when the victim received insurance benefits under the National Health Insurance Act due to a third party's tort, the National Health Insurance Corporation shall obtain the victim's damage liability within the scope of the amount of such benefits. In cases where the victim's negligence competes with each other, the National Health Insurance Corporation shall first set off the amount of damages calculated, and then the National Health Insurance Corporation shall exercise the victim's damage liability on behalf of the victim for the total amount of the insurance benefits within the scope of the damage claim. Therefore, the victim's damage claim against the third party shall be reduced within the scope of the damage claim (see, e.g., Supreme Court Decisions 2002Da50149, Dec. 26, 2002; 2014Da68013, 68020, Feb. 12, 2015; 2014Da327167, May 16, 2019). The Plaintiff's claim for the remaining amount of the medical treatment charge at the hospital from the amount of the Plaintiff 2014.

(ii) future treatment costs;

The following medical expenses are recognized during the life period of the Plaintiff. Since there is no evidence to prove that the Plaintiff spent the following medical expenses by the date of the closing of argument in this case, it shall be deemed that the first disbursement was made on October 29, 2020, the day following the date of the closing of argument in this case, and when calculating the current price at the time of the medical accident in this case, it shall be KRW 170,251,297, such as the attached Form 3.

(a) Sexually off-closion: Materne removal surgery and local transplant (two instances), total of 8,100,000 won;

(b) Rehabilitation department: 21,912,165 won per annum (847,165 won for medical treatment of pharmaceutical products + 109,000 won for physical treatment + 20,956,000 won for physical treatment);

(d) Nursing expenses;

(i) king expenses;

It is recognized that the Plaintiff spent KRW 35,130,000 at the opening expense from June 2015 to December 2019.

(ii) future nursing expenses;

A) An opening call refers to not only to help a victim voluntarily engage in basic daily activities, such as eating, lodging, walking, walk-out, and physical change, but also to assist a person who is unable to lead a basic daily life from time to time by his/her family members, as well as to assist such person from time to time. Whether opening is necessary should be determined reasonably and objectively by taking into account the victim’s age, physical condition before the accident, degree of physical disability, social and economic conditions, etc. In such a case, whether a judge uses assistance materials to use special knowledge and experience in appraisal, and whether a judge should not be bound by the result of the physical appraisal commission, and thus, whether a person needs to open the door regularly in light of the aforementioned listed conditions and empirical rules, including the result of the physical appraisal commission.

B) According to the results of physical examination of the head of the Dong University Hospital (Rehabilitation medical department), the Plaintiff is required to provide 16 hours a day to the Plaintiff. However, in this case, the Plaintiff’s necessary outline appears to have attempted to provide family members, not experts, with a part of his/her family, with a part of his/her daily life with a part of his/her family, with a part of 16 hours including the hour. Even if the Plaintiff needs to open care for 16 hours excluding the hour, the opening is not actively conducted during that period, but rather is deemed to be sporadic. Thus, it is reasonable to determine the opening of 8 hours a day during the remaining remaining life period. As the Plaintiff seeks to apply this, when calculating the opening expense from January 1, 202 to the end of the remaining life, the Plaintiff is a total of 404,817,695 won, as stated in attached Table 4.

3) The opening costs due to the instant final disability are KRW 439,947,695 (the opening costs of king 35,130,000 + the opening costs of 404,817,695). At the time of the instant agreement, the Defendant hospital calculated the opening costs of 58,764,866 (the opening costs of 8,764,866 won per day, 4 hours per day from the date of the instant agreement, 38,764,866 won, which appears to have been agreed with the Plaintiff. The above 58,766 won is recognized as the opening costs of 381,182,829 won (the 439,697,95 won, 5864, 8666) as the opening costs at the time of the instant agreement, and is calculated in a way that the Plaintiff was aware or could have predicted at the time of the instant agreement with the Plaintiff.

E. On October 29, 2020 after the date of the closing of argument, the auxiliary equipment cost is deemed to have first disbursed the wheelchairs (480,000, and 5 years of life expectancy) cost on October 29, 2020, and when calculating the current price at the time of the medical accident of this case, it shall be KRW 859,488 as shown in attached Table 5. (No evidence exists to deem that the Plaintiff predicted the aforementioned auxiliary equipment cost at the time of the agreement of this case, and there is no additional amount to be deducted).

(f) Limitation on liability

The Plaintiff’s property damage is KRW 682,091,79 [i.e., daily income of KRW 129,798,185 + ex post facto care expenses of KRW 170,251,297 + nursing expenses of KRW 381,182,829 + subsidies of KRW 859,488]; 70%).

(g) Consolation money;

The consolation money for the final disability of this case shall be determined at KRW 75,00,000, in consideration of the developments of this case, the degree of the final disability of this case suffered by the plaintiff, the age of the plaintiff, the mental suffering suffered by the plaintiff, and all other circumstances shown in the argument of this case.

The defendant hospital calculated 45,00,000 won as consolation money for the plaintiff, and appears to have reached the agreement of this case with the plaintiff based on it. The above 45,000,000 won as consolation money that the plaintiff could have predicted at the time of the agreement of this case shall be deemed as consolation money that the plaintiff could have predicted at the time of the agreement of this case, and the plaintiff's consolation money shall be 30,000,000 won.

H. Sub-committee

Therefore, the Defendant hospital is obligated to pay to the Plaintiff the sum totaling KRW 507,464,259 (=47,464,259 + KRW 30,000 + KRW 30,000), which is the date of the instant medical accident, to the extent that it is reasonable for the Defendant hospital to dispute about the scope of its duty of performance from October 3, 201 to December 23, 2020, which is the date of the instant judgment, 5% per annum under the Civil Act until December 23, 2020, and damages for delay calculated at the rate of 12% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

5. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yellowia

Judges Lee Dong-young

With respect to the time prior to June 3, 2019, which was conducted by the bathing environment-gu inspection, 54% until the time prior to that time shall be recognized as 54% of the grounds for limitation of liability.

shall be considered.

(ii)

A person shall be appointed.

3) The Defendant hospital calculated approximately KRW 89 million (for three years after the end) with the treatment costs of the Plaintiff, and appears to have agreed with the Plaintiff. The above agreement was concluded with the Plaintiff.

According to this legal doctrine of the calculation of damages, the plaintiff's treatment expenses (from November 5, 2012 to May 16, 2019) must be deducted from the above 89 million won.

B. Since all the claim of the king medical expenses that the plaintiff can claim against the defendant hospital has expired, it shall not be deducted additionally.

Only the reasons for the calculation of consolation money shall be deemed to be the reason for consideration.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.