[1] Whether the symptoms may be presumed to have been caused by medical negligence by proving indirect facts that cannot be deemed to have any other reason than medical negligence in the event of symptoms causing serious results to a patient during or after an operation (affirmative) and the limitation thereof where the symptoms may be presumed to have been caused by medical negligence

[2] In a case where a patient has the ability to judge as an adult, whether it is permissible to substitute the patient's consent with the consent of his/her relative (negative)

[1] Article 750 of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 750 of the Civil Act

[1] Supreme Court Decision 2005Da5867 Decided May 31, 2007 (Gong2007Ha, 949) Supreme Court Decision 2012Da41069 Decided January 29, 2015 / [2] Supreme Court Decision 94Da35671 Decided November 25, 1994 (Gong199Sang, 99Sang)

Plaintiff 1 and five others (Attorneys Shin Jae-ho et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Filiwon, Attorneys Choi Jung-tae et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2012Na34792 decided January 23, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. Medical practice is an area requiring highly specialized knowledge, and it is very difficult for a general person, not an expert, to clarify whether a doctor has breached his/her duty of care in the course of medical practice or whether there exists causation between a doctor’s breach of his/her duty of care and the occurrence of losses. Therefore, it is also possible to presume that the symptoms are attributable to medical negligence by proving indirect facts that are difficult to deem that there are other causes than medical negligence in the course of operation or operation, in the event of symptoms causing serious damage to a patient after an operation, and thus, it is also possible to presume that the symptoms are attributable to medical negligence. However, even in such case, it is not allowed to estimate the causal relationship between the doctor’s negligence and the result of gross negligence with circumstances that are not likely to be presumed as a result of doctor’s negligence (see, e.g., Supreme Court Decisions 2005Da5867, May 31, 2007; 2012Da41069, Jan. 29, 2015).

B. In the instant case where the Deceased died of excessive blood transfusion due to the deceased’s low-level surgery (hereinafter “the instant surgery”), the lower court determined that: (a) the first instance court and the lower court’s medical record appraisal results on the deceased’s sex hospital hospital hospital, etc. were colored (8.1%); (b) the upper fladation or fladation (0.5%) the upper fladation (4%); (c) the fladation or fladation of the fladation by using the fladation method; and (d) the fladation method (0.6%); and (e) the fladation method (4.7-8.9%); and (e) the fladation method and fladation method of the deceased’s fladation; and (e) the fladation method and fladation method of the deceased’s fladation; and (e) the fladation function of the patient.

C. However, the lower court’s determination is difficult to accept for the following reasons.

1) According to the result of the entrustment of the medical record appraisal with respect to the head of the Sillver University Hospital, the lower court’s medical record appraisal commission for the head of the Silver University may lead to blood transfusion (0.6%) out of the mergers following the low-level clibing clibing surgery; in order to avoid damage to surrounding organizations and blood transfusion during the process of the clibing operation; however, when the clibing process is severe, there are many cases where it is difficult to avoid damage to surrounding organizations by giving a careful attention; and according to the result of the first instance court’s entrustment of the medical record appraisal with respect to the head of the Silver University Hospital, there is a possibility that the clibal, infection, milking, leakage, re-operation, and unexpected heart stop in all cases, and there is a possibility of death in all cases.

Thus, blood transfusion is one of the general mergers of the surgery on the diversary booms, including the low-level reculption, and even if the possibility of the occurrence of blood transfusions in total is 0.6% higher than that of the diversary diversary diversary diversary diversary diversary diversary diversarysary diversarysary diversarysary diversarysary diversarysary diversarysary diversarysary diversary diversarysary diversarysary diversarysary diversarysary diversarysary diversarysary diversarysary diversarysary divesary divesary

2) According to the records, the deceased’s breath and male of cancer was boomed around the deceased’s body and work site. In the process of breathothothothothothotho, when the bruthothotho was found, and the breathothotho was changed to the bruthotho and the bruthothothotho was suspended the operation. According to the result of the medical record appraisal of the head of the bruthothothy hospital at the Tol University, the court below may pressure the part of the breathotho and induce the bruthothothothotho in any case, but it is very difficult to give the bruthothotho where the bruthothothothothothothotho was found in the process of bruthothothothotho.

Therefore, it cannot be readily concluded that Defendant 2 was negligent in the course of blood transfusion solely on the ground that Defendant 2 attempted to blood, but did not blood, upon the occurrence of a peltoma in the middle of the instant surgery, as seen above, in the middle of the instant surgery.

3) Other circumstances that the lower court rendered are nothing more than explaining the content of the instant surgery and the content of the duty of care that the medical personnel should perform in the course of the surgery. Accordingly, the circumstances that the lower court rendered are merely circumstances that do not guarantee the probability to the extent that the occurrence of blood transfusion, which caused the death of the deceased, is presumed to be due to medical negligence.

D. Nevertheless, the lower court determined that the deceased’s death was caused by Defendant 2’s negligence in the oral weather solely based on the circumstances stated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on negligence in medical malpractice and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Defendants’ ground of appeal assigning this error is with merit.

2. Regarding the plaintiffs' grounds of appeal

As long as the patient has the ability to judge as an adult, it is not allowed to substitute the patient's consent with the consent of relatives (see Supreme Court Decision 94Da35671 delivered on November 25, 1994, etc.).

The lower court determined that Defendant 2 performed his duty to explain patients on the ground that Defendant 2 explained the condition of the Deceased or the content of the instant surgery and the subsequent legacy to Plaintiff 1, the guardian of the son’s children prior to the instant surgery.

However, in light of the above legal principles, unless the deceased was given a direct explanation and was unable to give consent, it cannot be deemed that Defendant 2 fulfilled his duty to explain the deceased’s condition, the contents of the surgery of this case, and the subsequent legacy for his children, not the deceased himself. Thus, the court below concluded that Defendant 2 performed his duty to explain only with the explanation given by Defendant 2 to Plaintiff 1, not the patient himself, without examining whether the deceased was informed of the above explanation through Plaintiff 1. In so doing, the court below erred by misapprehending the legal principles on the doctor’s duty to explain and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The plaintiffs’ ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Ki-taik (Presiding Justice)