2. The costs of appeal shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 6,50,000 won with 5% interest per annum from January 6, 2017 to the service date of a copy of the complaint of this case, and 12% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the plaintiff in the judgment of the first instance is revoked. The defendant shall pay to the plaintiff 4,50,000 won with 5% interest per annum from January 6, 2017 to the service date of a copy of the complaint of this case, and 12% interest per annum from the next day to the day of complete payment.

A. On July 17, 2015, the Plaintiff, who was admitted to the Defendant’s “C” operated by the Defendant (hereinafter “Defendant Hospital”), was consulted and received an autopsy operation from the Defendant (hereinafter “instant surgery”).

Around 2012, the Plaintiff had experience in undergoing the instant surgery at another hospital on one occasion before receiving the instant surgery from the Defendant, and received again the instant surgery upon satisfaction of complaints about the result of the surgery.

B. Around January 5, 2017, the Plaintiff: (a) went through the instant surgery to the Defendant; and (b) was performed by the Defendant at the bottom of the snow; and (c) was performed by the Plaintiff. The Plaintiff was unable to satisfy the result of the said rash surgery; (b) requested the Defendant to undergo a rash surgery on or around January 31, 2018; but (c) the Defendant refused the Plaintiff’s request for re-operation.

C. D, an employee of the Defendant, partially alters the date and time of medical examination and treatment stated in the Plaintiff’s medical records.

On August 30, 2018, a copy of the medical records altered as above was presented to the Plaintiff.

[Ground of recognition] The fact that there is no dispute, Gap's 1, 5 through 7, Eul's 1 through 5 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

After receiving the instant surgery due to Defendant’s negligence, the cosmetic improvement effect was not achieved, such as symptoms that are more deep, after the instant surgery was conducted. Since the Defendant violated Plaintiff’s right to self-determination on whether to conduct the surgery because it did not adequately explain the risks or side effects that may arise from the instant surgery to the Plaintiff before the instant surgery, the Defendant is liable to compensate the Plaintiff for the damages incurred to the Plaintiff due to the Plaintiff’s negligence and breach of duty to explain.

3. Determination

A. Whether the person was negligent in medical treatment

As a result, it cannot be deemed that a physician is liable under a medical contract as a result of accomplishing the effectiveness of improvement of appearance expected by a patient, which is not a cosmetic improvement effect, rather than a treatment of a disease (see, e.g., Supreme Court Decision 2007Da58087, Jul. 24, 2008). In other words, a physician’s duty of medical treatment for a patient is not a duty to achieve the result of treatment of a patient, but a duty to perform necessary and appropriate medical treatment in light of the current medical level, with the care of a good manager, for recovery, and thus, is a duty to perform medical treatment as necessary and appropriate in light of the current medical level, it cannot be presumed that the result of medical treatment cannot be presumed to have been satisfied (see, e.g., Supreme Court Decision 2015Da21295, Oct. 15, 2015).

B. Whether the duty of explanation is violated

(1) In general, a doctor is obligated to explain the symptoms, treatment method and necessity of a disease, the foreseeable risk of occurrence, etc. in light of the current medical care level in cases where he/she performs a medical act, such as an surgery, which is highly probable to cause an adverse consequence, or where he/she performs a medical act which is predicted to cause a death, etc., and to allow the relevant patient or his/her legal representative to choose whether to receive such medical act by sufficiently comparing the patient’s necessity or risk and by sufficiently comparing it (see, e.g., Supreme Court Decision 2005Da5867, May 31, 2007). In particular, cosmetic surgery is performed for the purpose of obtaining or increasing an aesthetic satisfaction of the patient’s personal condition, and thus, it is very weak that urgency or inevitable for the purpose of treating the disease, etc., and thus, it is necessary to select the client’s specific method of surgery to the extent that he/she wishes to obtain more specific understanding of the client’s objection and risk than other medical acts.

In addition, barring special circumstances, the burden of proving the duty to explain is on the part of the doctor (see, e.g., Supreme Court Decision 2005Da5867, May 31, 2007).

(2) In full view of the purport of the Plaintiff’s evidence No. 1 and the oral argument, the Defendant hospital may recognize the fact that the Defendant consulted with the Plaintiff prior to the instant veterinary surgery and explained certain matters. However, as seen earlier, the instant surgery is a cosmetic type surgery, and it is insufficient to recognize that the Defendant provided specific and sufficient explanation about the Plaintiff’s duty of explanation required for the doctor who requested cosmetic type surgery while performing the instant surgery, namely, the method and necessity of the surgery, risks or risks, side effects that may occur after the surgery, and whether the Plaintiff can implement all the specific results desired by the surgery, and there is no evidence to acknowledge this otherwise. Ultimately, the Defendant violated the Plaintiff’s duty of explanation, and thus, is obliged to compensate for damages suffered by the Plaintiff.

C. Scope of liability for damages

(1) In the instant case, the degree of violation of the duty to explain cannot be deemed to be the same as the degree of violation of the duty to explain (see, e.g., Supreme Court Decision 2002Da48443, Oct. 25, 2002). The Defendant’s liability for damages caused by the Defendant’s violation of the duty to explain is limited to consolation money for the Plaintiff’s mental damage. The Plaintiff’s age, gender, the process and result of the instant surgery, the Defendant changed the medical records, the Plaintiff was receiving a boom surgery before the instant surgery, and all other circumstances shown in the argument in the instant case, it is reasonable to determine the consolation money as KRW 2,00,000.

(2) Ultimately, the Defendant is obligated to pay to the Plaintiff 2,00,000 won and damages for delay calculated at the rate of 5% per annum as stipulated by the Civil Act from January 6, 2017 to June 17, 2020, which is the date of first instance judgment, and 12% per annum as stipulated by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. The judgment of the court of first instance is legitimate in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judgment Notarial Award

Judges Kim Jong-k