[2] In a case where all damages are claimed as a result of a doctor’s violation of the duty to explain, whether a proximate causal relationship exists between the result and the violation of the duty to explain and the mistake in the process of acquiring the consent (affirmative), and the degree of the required violation

1. As to the grounds of appeal Nos. 1 and 2

A. In the case of a medical act that infringes on the body, such as a patient’s surgery, barring special circumstances, the patient should obtain consent to the medical act by explaining the symptoms of the disease, the contents and necessity of the method of treatment, the anticipated risk of the occurrence, etc. prior to the medical act, by sufficiently comparing the patient’s necessity or risk and by choosing whether the patient should undergo the medical act (see, e.g., Supreme Court en banc Decision 2009Da17417, May 21, 2009). In particular, if such medical act is performed at the stage of clinical trial, the patient is obligated to explain the safety and effectiveness (treatment effect) of the medical act in comparison with the general and standard medical act that is performed clinical at the time of the clinical trial (see, e.g., Supreme Court Decision 2007Da3162, Oct. 14, 2010).

Meanwhile, exemption from liability based on the so-called assumptive consent that the patient would consent to medical treatment even if the patient did not hear an explanation from the doctor, is exceptionally allowed only when the patient's consent is clearly anticipated (see, e.g., Supreme Court Decisions 92Da2585, Apr. 15, 1994; 2001Da27449, Jan. 11, 2002).

In addition, the court shall determine whether the assertion of facts is true in accordance with logical and empirical rules, based on the ideology of social justice and equity, with a free evaluation of evidence taking into account the overall purport of pleadings and the result of examination of evidence (Article 202 of the Civil Procedure Act). The facts duly confirmed by the court of final appeal that the court below did not exceed the bounds of the free evaluation of evidence (Article 432 of the same Act)

B. citing the reasoning of the judgment of the court of first instance, the court below acknowledged that (1) there was no agreement based on clinical experience from academic circles on the safety and effectiveness (treatment effect) of the snow white operation at the time of the instant procedure. (2) Since the instant procedure was conducted at the time of the clinical trial, the Defendant was obligated to explain not only the general explanation required for the ordinary physical violation medical act but also the circumstance that the instant procedure is not yet established by clinical data, the Defendant did not have any specific explanation on the actual condition of the instant procedure. However, the court below determined that the Defendant did not explain only the ordinary side effect and merger evidence, and obtained consent to the instant procedure, and did not yet prove the safety and effectiveness of the instant procedure, and did not yet prove that there was no evidence to prove that there was no agreement based on clinical experience from academic circles. (3) In addition, the court below determined that the Plaintiffs did not have any duty to explain required at the time of the instant procedure.

C. Of the grounds of appeal, the argument disputing such fact-finding by the lower court is merely an error in the selection of evidence and the determination of the value of evidence belonging to the free trial of the fact-finding court.

In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the scope of the doctor’s duty of explanation, performance and exemption or constructive and household consent, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. As to the third ground for appeal

A. In a case where a physician claims all damages from the result of performing an operation and causing a serious result to a patient, there is a proximate causal relation between the serious result and the doctor’s breach of the duty to explain or the mistake in the process of acquiring the consent. In the above case, in light of the purport of the duty to explain in order to protect the patient’s right to self-determination and the opportunity for choice for treatment, the doctor’s breach of the duty to explain must be the same degree as the doctor’s breach of the duty to explain required in the course of treatment for the patient’s life and body (see Supreme Court Decisions 95Da56095, Apr. 12, 1996; 2002Da45185, Oct. 28, 2004, etc.).

B. As seen earlier, the lower court acknowledged that there was a proximate causal relationship between the Defendant’s violation of the duty of explanation and the symptoms experienced by the Plaintiffs after the instant procedure, and determined that the Defendant is liable to compensate the Plaintiffs for all damages, including consolation money, due to the violation of the duty of explanation, in full view of the following: (a) the Plaintiffs could be presumed to have not undergone the instant procedure if they had explained about the exact situation, etc. during which the instant procedure had been evaluated by the Defendant; and (b) the result of the physical examination entrustment to the head of an affiliated university of Hung University; and (c) the lower court recognized that there was a proximate causal relationship between the Plaintiff’s symptoms

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned determination is based on the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on causation between the violation of the duty to explain and the damages, the scope of compensation for damages caused by the violation of the duty to explain, thereby failing to exhaust all necessary deliberations

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)