[손해배상(의)][공2005.11.1.(237),1689]
[1] Whether the causal relationship between the medical negligence and the result is presumed in a case where the injured party proves that the act of medical negligence was committed on the part of the injured party and that the cause other than the medical practice was not established on the part of the injured party (affirmative)
[2] In a case where, among a large number of doctors who participated in medical practice, it is not clearly identified who caused a medical accident by negligence, whether all of them can be held liable for joint tort (affirmative)
[3] Whether proximate causal relation exists between the extended damage and the industrial accident accident in a case where the damage suffered by the injured victim due to the industrial accident has been increased due to the medical accident while receiving the treatment (affirmative)
[1] In order for a patient to be liable for tort due to breach of duty of care or for non-performance of duty of care in medical practice, there should be causation between the violation of duty of care in medical practice, the occurrence of damages, and the violation of duty of care and the occurrence of damages. However, the medical procedure is an area where highly specialized knowledge is required, and only the patient himself/herself can be aware of his/her part of it in the case of major medical practice, and the medical procedure to achieve the result of treatment depends on his/her own discretion. Therefore, it is extremely difficult for the patient to prove that the direct cause of damages is due to medical negligence, not an expert doctor, and it is extremely difficult for the patient to prove that the causal relationship between the patient's breach of duty of care in medical practice and the occurrence of damages is medically perfected. Thus, in the case of a medical accident, the patient can prove the act of negligence on the basis of ordinary knowledge in the course of a series of medical practice in the victim's side, and that there is no other cause different from the result of a series of medical practice, unless it proves that there was a defect in the medical procedure.
[2] In a case where multiple doctors are involved in medical practice and it is not clear who caused the medical accident by negligence, it is reasonable to view that all doctors involved in a series of medical practice can be held liable for joint tort pursuant to Article 760(2) of the Civil Act.
[3] In a case where the symptoms of a victim injured due to an industrial accident are aggravated or the damage caused by a new symptoms is expanded due to a medical accident caused by a doctor's negligence, etc. while being treated while being treated, barring any other special circumstance, there is a proximate causal relation between such damage and the industrial accident. Thus, if the industrial accident and the medical accident independently meet the requirements of tort, and it is recognized that the accident and the medical accident meet the requirements of tort, thereby objectively related and jointly causing the damage to the victim, joint tort is constituted, and joint tort tort tort is jointly and severally liable for compensation.
[1] Article 750 of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 760 (2) of the Civil Act / [3] Articles 750 and 760 (1) of the Civil Act
[1] [3] Supreme Court Decision 9Da48245 delivered on September 8, 200 (Gong200Ha, 2074) / [1] Supreme Court Decision 93Da52402 delivered on February 10, 1995 (Gong1995Sang, 1281), Supreme Court Decision 9Da3709 delivered on June 11, 199 (Gong1999Ha, 1381), Supreme Court Decision 9Da10479 delivered on September 3, 199 (Gong1999Ha, 2032), Supreme Court Decision 2001Da19486 delivered on August 27, 209 (Gong2002Ha, 209, 209Da3799499 delivered on June 3, 209) 209, Supreme Court Decision 209Da3794989 delivered on May 27, 2005 (Gong20945397, May 29, 209409.
Plaintiff 1 (Law Firm Asung, Attorneys Kim Jin-kin et al., Counsel for the plaintiff-appellant)
Plaintiff 2 and one other (Law Firm Asung, Attorneys Kim Jin-kin et al., Counsel for the plaintiff-appellant)
Defendant 1 (Attorney Cho Ho-ho et al., Counsel for the defendant-appellant)
Defendant 2 and one other (Attorney Cho Ho-ho et al., Counsel for the defendant-appellant)
Daegu High Court Decision 2003Na2995 Delivered on August 18, 2004
All appeals by the Defendants and appeals by Plaintiff 1 are dismissed. The costs of appeal are assessed against the Defendants, and the costs of appeal against the Defendants are assessed against the Plaintiff 1, respectively.
1. Judgment on the Defendants’ grounds of appeal
A. As to the grounds of appeal Nos. 1 through 3
In order to be held liable for tort due to breach of duty of care or non-performance of a medical act, there should be causation between the violation of duty of care, the occurrence of damages, and the violation of duty of care and the occurrence of damages. However, the medical procedure is an area where highly specialized knowledge is required, and the patient himself/herself can only be aware of his/her part in the case of major medical treatment, and the medical procedure to achieve the result depends on his/her own discretion. Thus, it is difficult for the patient to prove the direct cause of damages due to medical negligence as an ordinary person who is not an expert, and it is extremely difficult for the patient to prove that the causal relationship between the patient's breach of duty of care and the damages is medically perfect, and it is extremely difficult for the patient to prove that the causal relationship between the patient's breach of duty of care and the damages is medically completed at least 30.97 times in the course of a series of medical practice at the victim, and that there is no other cause than a series of medical practice at least 90,000 as a result of the judgment.
In addition, if multiple doctors are involved in medical practice and it is not clear who caused the medical accident by negligence, it is reasonable to view that all doctors involved in a series of medical practice can be held liable for joint tort in accordance with Article 760(2) of the Civil Act.
같은 취지에서 원심은 그 채용 증거들에 의하여, 망 소외인(이하 '망인'이라고 한다)은 소외 선진정밀 주식회사(이하 '소외 회사'라고 한다) 내 작업장에서 프레스 기계를 이용하여 작업을 하던 중 양손이 위 기계에 압착되어 좌, 우측 각 제1, 2 수지가 절단되는 사고를 당한 사실(이하 '1차 산재사고'라고 한다), 망인은 피고 1이 운영하는 현대병원(이하 '피고 병원'이라 한다)으로 후송되어 피고 병원 소속 의사들인 피고 2, 3으로부터 수지절단 및 접합수술을 받은 사실, 피고 병원의 의료진은 수술을 전후하여 전신기능이 저하된 망인에게 적정수액량을 훨씬 초과하여 수액을 과다투여하였음에도 망인의 소변배출 여부와 소변량 등 환자의 동태를 제대로 살피지 아니하였고, 망인은 수술 이후 심장을 둘러싸고 있는 심낭에 400㏄ 가량의 삼출물이 차서 심장을 압박하는 바람에 심폐기능에 갑작스런 장애를 일으켜 심장 탐포나데로 사망에 이르게 된 사실(이하 '2차 의료사고'라고 한다), 망인은 피고들 병원에 내원하기 전부터 경미하나마 만성 심낭염 증세가 있었으나 심장질환 등으로 치료받은 적은 없고, 피고 병원에 내원할 무렵에도 호흡곤란이나 흉통 등의 증상이 없었으며, 수술 전 피고 병원에서 행한 각종 검사에서도 별다른 이상이 발견되지 아니한 사실, 심장 또는 대동맥의 파열 또는 해리가 없을 경우 단시간 내에 심낭에 400cc 가량의 삼출물이 차는 경우란 극히 드문 일인 사실 등을 인정한 다음, 이 사건 2차 의료사고는 전신기능이 저하된 망인에게 수액을 투여함에 있어 그 용량을 철저히 지키고 투여 후에도 망인의 소변배출 여부와 배출량 등을 제대로 관찰하며 신체상태를 세심하게 살펴보아 수액 투여로 인한 부작용의 기미가 보이면 즉시 이를 중단하거나 적절한 대응조치를 취하여야 할 주의의무가 있음에도, 이러한 조치를 제대로 취하지 아니한 채 수액을 계속 투여하고 망인의 신체상태를 제대로 살펴보지 아니한 피고 2, 3의 잘못으로 인하여 발생한 것으로 봄이 상당하다고 판단한 후, 망인은 위 피고들의 의료상 과실 때문이 아니라 오로지 기존에 앓아오던 만성 심낭염 증세로 인하여 사망한 것뿐이라는 피고들의 주장을 배척하였는바, 기록 및 위 법리에 비추어 살펴보면, 원심의 증거취사와 사실인정 및 판단은 정당한 것으로 수긍할 수 있고, 거기에 상고이유로 주장하는 바와 같은 증거 없이 사실을 인정한 채증법칙 위배나 의료사고에 있어 인과관계에 관한 법리를 오해한 위법 등이 있다고 할 수 없다.
B. Regarding ground of appeal No. 4
In a case where the symptoms of the injured victim due to an industrial accident are aggravated or new symptoms are expanded due to a medical accident caused by the doctor's negligence, etc. while being treated while being treated, barring any other special circumstance, there is a proximate causal relation between such damage and the industrial accident. Thus, if the industrial accident and the medical accident independently meet the requirements of tort and it is recognized that the damage was objectively related and unlawfully inflicted on the injured party, joint tort is constituted, and joint tort is jointly and severally liable for the damage (see, e.g., Supreme Court Decisions 94Da35671, Nov. 25, 1994; 96Da46903, Aug. 29, 1997; 98Da32045, Nov. 24, 1998).
In light of the above legal principles and records, it is reasonable to see that the first industrial accident and the second medical accident in this case constitute joint tort. The court below's judgment to the same purport also calculated the deceased's lost income on the basis of the deceased's ability to operate 100% without separately considering the rate of loss of labor ability caused by cutting the deceased's handout, and it is insufficient in its reasoning. However, although the first industrial accident occurred, the court below's judgment can be seen to the purport that the deceased's negligence, including negligence in the first industrial accident, against the non-party company and all the Defendants, including negligence, can be evaluated as a joint tortfeasor, and it reflects it in the final calculation of compensation amount. Thus, there is no error of law such as the contradiction of reason or lack of reason.
2. Determination on the grounds of incidental appeal by Plaintiff 1
In light of the records, the court below's finding facts as stated in its adopted evidence and taking into account the facts of its finding, it is also acceptable to limit the defendants' liability due to each accident of this case to 60% of the total damages, and it is not acceptable to accept the grounds of incidental appeal that there is an error in violation of the rules
3. Therefore, all appeals by the Defendants and appeals by Plaintiff 1 are dismissed, and the costs of appeal and appeals by the losing parties are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jack-dam (Presiding Justice)