[1] Whether a proximate causal relation exists between a violation of the duty to explain and a serious result (affirmative), and the degree of a violation of the duty to explain at that time, in a case where a medical doctor claims compensation for any damage caused by a serious result caused to a patient on the ground of a violation

[2] Whether the consolation money due to a doctor's violation of the duty of explanation includes the amount of money benefiting from mental suffering due to the loss of self-determination right related to the part for which a doctor's violation of the duty of explanation is not recognized, or the amount of money benefiting from mental suffering due to the occurrence of a serious result itself (negative), and in a case where a patient suffered from bad results due to medical practice, but the doctor's negligence is not acknowledged, and only violated the duty of explanation is recognized, whether it is actually possible to compensate for

[1] Where a physician violates his/her duty to explain and performs an operation to a patient causing a serious result, it is sufficient to prove that he/she lost the opportunity for choice on the part of the patient and lost the opportunity to exercise his/her right to self-determination and only claims consolation money for the impossibility of exercising his/her right to self-determination. However, in cases of claiming compensation for all damages as a result, there is a proximate causal relation between the serious result and the doctor's breach of his/her duty to explain and the mistake in the process of acquiring the consent. In light of the fact that the doctor's breach of his/her duty to explain is necessary to protect the patient's right to self-determination and the opportunity to choose for treatment, it should be sufficient to prove that he/she lost the opportunity for choice due to lack or lack of the doctor's explanation.

[2] Even if a doctor's duty to explain patients is not limited to the time of surgery, and it occurs in all stages of medical treatment, such as examination, diagnosis, and treatment, a doctor's duty to explain a violation of the duty to explain should not include the amount of mental suffering resulting from loss of self-determination right related to the part for which a violation of the duty to explain is not recognized, or the amount of mental suffering resulting from a violation of the duty to explain should not be included in the consolation money where a doctor does not have the duty to explain and explain the patient's symptoms, treatment or diagnosis method and necessity before the act in a case where a serious result was caused to the patient, and the patient's failure to explain the risk likely to result from such act. If a doctor had selected whether the patient would receive the medical act or not, then the patient would have been able to avoid the occurrence of a serious result by exercising the duty to explain.

[1] Articles 750 and 751 of the Civil Act / [2] Articles 393, 750, 751, and 763 of the Civil Act

[1] Supreme Court Decision 93Da60953 decided Apr. 15, 1994 (Gong1994Sang, 1440), Supreme Court Decision 2005Da5867 decided May 31, 2007 (Gong2007Ha, 949) / [2] Supreme Court Decision 94Da27151 decided Apr. 25, 1995 (Gong195Sang, 1939)

Plaintiff (Attorney Shin-ho et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Park Young-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na15983 decided February 24, 2011

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined.

1. Plaintiff’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed)

A. Regarding ground of appeal No. 1

The plaintiff's ground of appeal pointing this out is nothing more than an error of the selection of evidence and fact-finding which belong to the exclusive jurisdiction of the court below, and it cannot be deemed a legitimate ground of appeal

B. As to the grounds of appeal Nos. 2 through 4

A physician has a duty of care to take the best measures required to prevent risks depending on the patient’s specific symptoms or circumstances in light of the nature of the duties of managing the patient’s life, body, and health, and such duty of care is based on the level of medical practice performed in the clinical medicine field, such as a medical institution, at the time of the medical practice. The level of medical care is generally known and recognized at the time of the medical practice by an ordinary doctor. As such, the level of medical care should be determined at a normative level in light of the environment and conditions of the medical practice, characteristics of the medical practice, etc. (see, e.g., Supreme Court Decisions 98Da45379, 45386, Mar. 26, 199; 2010Da76849, Sept. 13, 2012).

On the other hand, a doctor may select and provide medical treatment based on the patient’s situation, the current medical level, and his/her knowledge and experience. Thus, it cannot be deemed that there is medical malpractice just on the sole ground that the result of the choice of a specific method is not good unless the determination of a doctor’s intention is beyond a reasonable scope (see, e.g., Supreme Court Decisions 91Da23707, May 12, 1992; 2010Da95635, Jun. 14, 2012).

Examining the reasoning of the judgment below in light of the above legal principles, the court below is just to determine that the Defendant’s choice of the instant surgery cannot be deemed to go beyond the reasonable scope, and that the Defendant did not conduct the necessary inspection prior to the instant surgery or did not take necessary measures for the Plaintiff’s pain after the surgery, and that there was no error in the misapprehension of legal principles as to medical malpractice claimed in the grounds of appeal.

C. Regarding ground of appeal No. 5

(1) In general, a doctor has a duty to explain the symptoms, treatment method and necessity of a disease, the anticipated risk of a disease, etc. in light of the current medical level and to allow the patient concerned or his/her legal representative to choose whether to receive the medical act by sufficiently comparing the necessity or risk and deciding whether to receive the medical act, on the premise that the patient concerned or his/her legal representative should obtain the patient's consent for the medical act, such as surgery, which is likely to cause a bad result, or which is anticipated to cause a death, etc. (see Supreme Court Decision 9Da10479 delivered on September 3, 199, etc.). However, a doctor is not obliged to explain the risk not anticipated due to the medical act in question, or to explain the risk unforeseeable in light of the current medical level (see Supreme Court Decision 9Da10479 delivered on September 3, 199, etc.).

Upon examining the reasoning of the judgment below in light of the above legal principles, it is just to recognize a violation of the duty to explain the above side effects on the ground that the defendant could not have predicted that such side effects could occur at the time of the operation of this case, and there is no error of law such as misunderstanding of legal principles as to the scope of the duty to explain alleged in the

(2) Meanwhile, in a case where a physician violated the duty of explanation and caused a serious result to a patient due to surgery, it is sufficient to prove that the patient lost an opportunity for choice on the part of the patient and lost an opportunity for choice due to lack of explanation or shortage of the doctor's right to self-determination and that the patient lost an opportunity for choice due to the impossibility of exercising the right to self-determination. However, in a case of claiming compensation for all damages as a result, there is a proximate causal relation between the serious result and the doctor's breach of the duty of explanation and the mistake in the process of acquiring the consent. In light of the fact that the doctor's violation of the duty of explanation is to protect the patient's right to self-determination or opportunity for choice on treatment, it should be the same degree as the doctor's violation of the duty of care required in the course of treating the patient's life and body (see, e.g., Supreme Court Decisions 93Da60953, Apr. 15, 1994; 2005Da5867, May 31, 207).

Examining the reasoning of the judgment below in light of the above legal principles, the judgment of the court below which limited the scope of damages caused by the defendant's violation of duty of explanation to the consolation money for infringement of self-determination is just, and there is no error of law such as misunderstanding of legal principles

2. As to the Defendant’s ground of appeal

A. Although a doctor's duty to explain patients is not limited to the time of surgery, and it occurs in all stages of medical treatment such as examination, diagnosis, and treatment, a doctor is obliged to pay consolation money, etc. to a doctor for a violation of the duty to explain. In a case where a doctor performs an operation without properly explaining the patient and a serious result unexpectedly occurs to the patient, the doctor is not acknowledged as a breach of the duty to explain the symptoms of disease, treatment or diagnosis method and necessity of the patient before the act, and the risk likely to occur from the act. If the patient did so by explaining the patient's symptoms, diagnosis method and diagnosis method, it would be possible for the patient to voluntarily exercise the right to self-determination, even though the doctor could avoid the occurrence of a serious result by selecting whether the patient would receive the medical act, and thus, the doctor did not explain (see Supreme Court Decision 94Da27151, Apr. 25, 1995, etc.). Thus, it should not be included in consolation money for the doctor's violation of the duty to explain.

B. The court below did not recognize the defendant's medical negligence and violation of the duty to explain the risk of the outbreak of the Complex Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-

In light of the difference between the first instance court and the court below's reasons for calculating consolation money and the amount of consolation money generally recognized in similar cases, and the amount of consolation money generally recognized in similar cases, even though the amount of consolation money must be determined at the discretion belonging to the fact-finding court, considering that the amount of consolation money must be determined at the discretion of the fact-finding court, the court below should not be deemed to have calculated consolation money excessively considering that the amount of consolation money which the court below did not recognize the violation of the duty of explanation includes the amount of consolation money for mental suffering due to loss of self-determination right to self-determination related to the multi-compacticulic stitionic stitionic stimulstitionic stimulstitionic stimulsa or the amount of consolation money for mental suffering due to the occurrence of the multi-compulic stitionic stimuls s

In the end, the court below erred by misapprehending the legal principles on the circumstances to be taken into account in determining the amount of consolation money due to violation of the duty to explain, thereby exercising its discretionary power significantly.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)