(영문) 서울중앙지방법원 2017.2.14. 선고 2015가합533953 판결

1. The Defendants jointly pay to the Plaintiff 124,253,283 won as well as 5% interest per annum from November 2, 2013 to February 14, 2017, and 15% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are all dismissed.

3. 4/10 of the costs of lawsuit are assessed against the Defendants, and the remainder is assessed against the Plaintiff.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendants jointly pay to the Plaintiff 300,000,000 won with the annual interest of 5% per annum from November 2, 2013 to the service date of a duplicate of the instant complaint; 9,000,000 won with the interest of 15% per annum from the next day to the day of full payment; and 5% per annum from November 2, 2013 to the service date of a duplicate of the application for modification of the claims and the cause of the claims in this case; and 15% per annum from the next day to the day of full payment.

Reasons

1. Facts of recognition;

A. Status of the parties

On November 2013, 2013, the Plaintiff is a patient who has been administered by the Defendant B, who is a doctor at the Ewon located in Gangnam-gu Seoul (hereinafter referred to as the “Defendant Hospital”), and the Defendant C is a doctor operating the Defendant Hospital.

B. Execution, etc. of the instant procedure

1) On November 1, 2013, the Plaintiff filed a complaint with the Defendant Hospital to undergo the Stockholm procedure around snow and scopher of the scopher and the scopher of the copher and scopher and the scopher of the copher and scopher.

2) 피고 B은 2013. 11. 1. 14:00경부터 시술을 시작하여 먼저 보톡스 시술을 한 후 23 게이지의 캐뉼라를 코 끝 부위에 삽입하여 코와 미간 부위에 히알루론산 성분의 퍼펙타 필러 lcc를 주입하였다(이하 '이 사건 시술'이라 한다).

3) The Plaintiff complained of the pain immediately after injecting the rupture, and the Plaintiff’s blood pressure around 14:33.

123mHg/86mHg (hereinafter unit omitted), and around 14:40, the Plaintiff made Gutotone, and around 14:41, the s the stroke, the stroke, was administered.

4) At around 14:50, the Plaintiff’s blood pressure was 140/88, and at around 15:30 and around 15:40, the Plaintiff’s blood pressure was administered alurina, a dratus decilate.

5) Around 15:45, the Plaintiff discussed the Gu, and around 15:46, the Plaintiff’s blood pressure was 168/80.

1) Defendant B and nurses were replaced by the Plaintiff, and transferred the Plaintiff to the Seoul Seocho-gu Seoul Metropolitan Government Gandong Department, and thereafter, the Plaintiff started at a higher hospital and arrived at the Gandong-dong Hospital at around 19:00 (hereinafter referred to as the “Gangdong-dong Hospital”).

2) At the time of the transfer of a same-sex hospital, the Plaintiff did not directly luminous reflect the dynamics of the dynamics to the dynamics of the dynamics because of safety dynamics, and the internal movement was limited in all directions. The medical team of the same-sex hospital was diagnosed as the closure of the dynamics centered on the dynamics, after observation of the network, the strings, the strings, and the strings of the poppys in the internal examination, and there was an acute cerebral cerebral tension in the left side of the Bribe examination.

3) On November 13, 2013, the Plaintiff received hospitalized treatment at a same time as the Seoul National University Hospital (Seoul National University Hospital). From November 21, 2013, the Plaintiff was discharged on January 6, 2014 when receiving hospitalized treatment at a decentralization hospital.

D. Current state of the plaintiff

The plaintiff is currently in a state of vision, and there is a limitation on the scope of Gyeong-do's movement and Gyeong-do's movement on the right side, and there is a disability of Gyeong-do's recognition, a disability, and a situation where Do's ability can be lost (hereinafter referred to as "the disability of this case").

(e) Related lawsuits;

Defendant B filed a lawsuit seeking confirmation of existence of an obligation against the Plaintiff to the effect that the Plaintiff is not liable for damages arising from the instant procedure (Seoul Central District Court 2016Gahap52608, hereinafter referred to as “related case”).

(f) Relevant medical knowledge;

In the case of an injecting a pen, it may cause serious side effects, such as the closure of the bloodline caused by injecting the part of the proprietor's blood, the loss of eyesight, brain fluoring, and the corrosion fluoring fluor. In particular, if damage is caused to the part of the horse fluor which is distributed on the part of the stern, it may cause the cluor to move the part to the inner beer and the corresponding corresponding marcing with the marcing with the marcing with the marcing with the marc and the marcing with the marcing with the marc, and the marcing with the marcing with the marcing pressure.If the marcing part is located in the marcing with the marcing part or damaged the marcing part, the marcing part will cause the marcing with the marcing part caused by the emcing pressure.

In order to prevent such side effects, it is necessary to use a national anesthesia containing a blood transfusion, use fluenites suitable for injection and injection materials, and check that the end of injecting the brucator before injecting the brucator is not in the bloodline. In addition, when injecting the brucator, it is necessary to immediately stop the injecting the brucator into the brucator with low pressure, to avoid excessive injecting the brucator, and to control the volume so that a large number of crus in the narrow area may not be injected, to have the place where the brucator is located, or to have the number of cructies increased in the brucatorologically, and to check whether the brucing change, such as the symptoms of the brucator and the brucator, etc., or the brucing change, if the brucing change appears on the part of injecting the bruc.

In the event of such side effects as above, it is necessary to take emergency measures, such as making soup soup and mathing, and making soup, etc. In addition, it may take into account such factors as dynasium expansion, urology, strokeing, strokeing, reducing internal pressure by tenting, and high pressure acid requirements, etc. If a personal hospital is unable to take such measures, the patient should immediately be transferred to a superior hospital after the above emergency measure.

[Reasons for Recognition]

○ Defendant B: In the absence of dispute, entry of Party A’s Evidence Nos. 1 through 17 (including a branch number; hereinafter the same shall apply), Party B’s Evidence Nos. 1 through 9, the result of the request for the examination of medical records to the head of Seoul Hospital of the instant court, the purport of the entire pleadings.

○ Defendant C: Judgment by public notice (Articles 208(3)3 and 194 through 196 of the Civil Procedure Act)

2. Summary of the plaintiff's assertion

Defendant B was at fault in the process of the instant procedure due to the mistake that led the Plaintiff to the real name of the seat of the seat, caused brain, etc., and delayed all of the hospitals after the instant procedure. In addition, Defendant B did not explain to the Plaintiff in advance about the merger certificates, such as the real name due to the instant procedure and the possibility of braining.

As a result, the Plaintiff suffered the instant disability, Defendant B is liable to compensate the Plaintiff for the damages caused by the instant disability as an employer of Defendant B, who is a party to the medical treatment contract.

3. Determination

(a) Occurrence of liability for damages;

1) Determination on the assertion of negligence in the instant procedure

A) When a doctor provides medical services, such as diagnosis and treatment, he/she shall 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. In particular, as a doctor providing cosmetic surgery, he/she shall carefully examine whether to perform the surgery on the basis of highly specialized knowledge, the timing, method, scope, etc. of the surgery, and then ensure that the requester of cosmetic surgery does not suffer from physiological or functional disorder (see, e.g., Supreme Court Decisions 2004Da13045, Oct. 28, 2005; 2007Do1977, May 31, 2007).

On the other hand, tort or default due to breach of duty of care in medical practice;

In order to be held liable for performance, as in other cases, the existence of causal link between the violation of the duty of care in medical practice, the occurrence of damages, the violation of the duty of care and the occurrence of damages should be premised. However, the medical practice is an area where highly specialized knowledge is required, and the process of the medical treatment is limited to only the patient himself/herself, other than the patient himself/herself can be aware of his/her part, and the method of the medical treatment to achieve the result depends on his/her own discretion, and it is difficult for the patient to prove that the direct cause of damages is due to the medical negligence as an ordinary person who is not an expert, and it is extremely difficult for the patient to prove that the causal link between the occurrence of the medical practice and the damage is medically perfect, and it is extremely difficult for the victim to prove that the causal relationship between the patient's breach of the duty of care in medical practice and the occurrence of the damage is medically completed at least 90 in the course of a series of medical practice at the victim's level (see, e.g., Supreme Court Decision 2009Da3222999999.

B) In light of the following circumstances revealed by the above recognized evidence in the instant case, it is reasonable to deem that Defendant B was negligent in failing to take proper measures to prevent side effects, such as the closure of the blood transfusion and the cerebral chroding, during the instant treatment process.

(1) Before the instant procedure, there was no physical cause or malfunction that may cause the Plaintiff to close the Maddong or brain.

(2) The Plaintiff did not have any particular anything until the Stockholm procedure. However, at the same time, the snow was flicking with the eye on the part of the company and the U.S., the body was flicking with the eye, and the body was flicking with the eye on the left eye, and the body was flicked with the flicking.

(3) The above abnormal symptoms seem to have caused luculous luculous luculties by moving lucules into anal luculous luculties, caused the closure of luculous luculous luculties by luculing the said luculs with inner luculties, closed the luculatory luculties, and caused a wide range of luculous luculs by luculous luculm through outer lucules and luculs

(4) 이 사건 시술 당시 끝이 뭉툭한 캐뉼라를 사용하였다 하더라도 캐뉼라에

In addition, it is possible to do harm to blood.

(5) In light of the above circumstances, it is reasonable to view that Defendant B failed to fully implement the precautions for injecting the Plaintiff as seen in the above facts found in paragraph (1).

(6) The Plaintiff lost the eyesight of a tracule due to the closure of Maculcule immediately after the instant procedure.

At the same time, cerebral tension has occurred, which is a side effect that is caused by damage to the blood recipient in the course of the procedure and that is caused by injecting it into the bloodline, and the instant procedure and the Plaintiff’s disability are close to time and close to the location of the part of the procedure and the part where the disability occurred, and there is no other cause that may cause the above symptoms except the instant procedure.

2) Determination as to the allegation of delay in electric power supply

As seen above, as seen in the above facts, Defendant B administered alluosa in order to record allusium after the occurrence of abnormal symptoms, administered allusium allusium, and the Plaintiff complained of allusium pain and visual allusium, and transferred the Plaintiff to the allusium, in accordance with the opinion of an internal doctor, and transferred the Plaintiff to the allusium. In light of the measures taken by the Defendant B and the process of electric power generation, even if the Plaintiff was not immediately transferred from the Defendant hospital to the allusium, or the Plaintiff did not have been negligent in delaying all of the Plaintiff. Accordingly, this part of the Plaintiff’s assertion is without merit.

3) Judgment on the assertion of violation of the duty to explain

A) cosmetic surgery is conducted for the purpose of obtaining or increasing the individual aesthetic and aesthetic satisfaction of the appearance. A doctor who has been requested to perform the surgery is obligated to choose whether to undergo the surgery by sufficiently comparing and reporting the necessity or risk of the client by sufficiently explaining the necessity, degree of difficulty, method of the surgery, anticipated risk, side effects, etc. of the relevant surgery. A doctor’s duty to explain cannot be exempted solely on the ground that there is little possibility of risk such as post-treatment or side effects, etc. following the medical practice. The burden of proving the performance of the duty to explain is on the side of the doctor (see, e.g., Supreme Court Decisions 2005Da5867, May 31, 2007; 2012Da94865, Jun. 13, 2013).

B) As seen earlier, inasmuch as there may arise serious side effects, such as the closure of the bloodline and the loss of eyesight, and the cerebral scam, etc., in the event that the scam is injected into the bloodline, the doctor must fully explain the possibility of such side effects to the patient before the procedure. There is no evidence to acknowledge that Defendant B specifically explained the above side effects to the Plaintiff at the time of the instant procedure. Therefore, it is reasonable to deem that Defendant B violated the Plaintiff’s duty to explain and infringed the Plaintiff’s self-determination right.

4) Sub-committee

As above, Defendant B failed to take measures to prevent side effects, such as the closure of the bloodline, in the course of the instant procedure, and was negligent in failing to perform its duty to explain to the Plaintiff. As such, Defendant B, as an actor, is liable to compensate the Plaintiff as the employer of Defendant B for the damages incurred to the Plaintiff.

B. Limitation on liability

However, in full view of the circumstances and conditions of the Plaintiff, the purpose and contents of the instant procedure, the fact that Defendant B had properly taken emergency measures, and the circumstances of the instant case, etc., imposing all damages incurred from the instant obstacles on the Defendants is contrary to the principle of equity. Considering the aforementioned circumstances in calculating the amount of damages to be compensated by the Defendants, it is also consistent with the ideology of the damage compensation system that provides a guiding principle for fair and reasonable sharing of damages. Therefore, in calculating the amount of damages to be compensated by the Defendants, it shall be taken into account in calculating the amount of damages to be compensated by the Defendants, but it shall be limited

C. Scope of damages

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 6, 12 through 17, Eul evidence Nos. 1 through 3, obvious facts to this court, the purport of the whole pleadings

The losses suffered by the plaintiff due to the above negligence of the medical staff of the defendant hospital are as follows. The calculation of the period for the convenience of calculation shall be calculated on a monthly basis, but less than a month shall be discarded, and in calculating the amount, less than a won shall be discarded, and the present price calculation at the time of the accident shall be based on the discount method that deducts the intermediate interest at the rate of 5/12 per month. And it shall be rejected that the parties' arguments did not separately explain.

(i) lost earnings;

A) Personal information and details of the evaluation;

(a) Gender: Women;

(b) Date of birth: Hant; and

(4) According to the results of physical examination and fact-finding on the Plaintiff (No. 15 and No. 17, hereinafter referred to as the “physical examination result”), the Plaintiff’s life expectancy is at least 85.2% of the normal person, and the female life of 50 years of age as of 2013, 36.34, the Plaintiff’s life expectancy is 30.96, and the remaining life expectancy is 30.96, and the remaining life of 30.10 on October 10, 204.

(5) At the time of the instant case, the Plaintiff was working as an insurance solicitor belonging to the Keo Life Insurance Co., Ltd., and the date of completion of the operation is April 26, 2023, when the Plaintiff reached the age of 60.

(6) Income

(A) According to Gap evidence No. 1-4, the plaintiff is an insurance solicitor and 2013

Recognizing that the income of KRW 42,187,453 has been earned from January to December of each year, the plaintiff shall file a claim for the lost income on the basis of the above income amount.

(b) In the case of an insurance solicitor, transportation costs from the total amount of revenue in the case of an insurance solicitor, and customer's ordinary inquiry costs.

In light of the characteristics of the type of business for which considerable expenses are to be incurred for attracting customers and managing customers' purchase of insurance contracts, only the remaining amount which remains after deducting the necessary expenses from the total amount of revenue (see Supreme Court Decision 98Da38623, Feb. 22, 2000). However, there is no objective evidence to acknowledge the necessary expenses to be deducted in the case of the Plaintiff, so the amount of income should be deducted from the amount of income obtained by multiplying the amount of income by the standard expense rate or simple expense rate pursuant to the proviso of Article 80(3) of the Income Tax Act. According to the public notice of the expenditure rate vested in the year 2013 under Articles 143, 145, and 2013 of the Enforcement Decree of the Income Tax Act, the simple expense rate for the insurance solicitor business is 7.6%, 4,000,000 won, 68.6% for the excess amount of KRW 860,000,0000 [the Plaintiff's income calculated by the above expense rate is 96060,0000.60 won +6000 won

(1-0.686) The conversion is 803,905 won per month when it is converted into a monthly unit.

Since the amount of KRW 1,851,652 multiplied by the number of monthly working days of KRW 84,166 is below the amount of KRW 22 days, it is reasonable to view that the income, which serves as the basis for calculating the Plaintiff’s lost income, is the amount calculated by multiplying the daily wage of an urban ordinary person by 22 days of monthly working days.

(7) Ratio of loss of labor capacity

(A) Period of hospitalization from November 1, 2013 to January 6, 2014: 100%

(B) On and after January 7, 2014

(1) Part of the loss of trial history of each unit.

AMA (U.S. Medical Association) criteria cited in the MaMA (U.S. Medical Association) disability assessment table.

If the vision of one eye is lost, the visual disability rate is 25%, and the overall disability rate is 24%, so this part of the labor disability loss rate is 24%.

(2) Part of the right-hand eavesdy, the fall of recognition function, and the part of the old disability due to brain shield.

According to the results of the physical examination, the plaintiff shall make up on the left-hand side leaves and the boundary area inside and outside the country.

As a result of brain salutism, it shows that there is an obstacle to 15% labor ability due to the crypology of the latitude, the upper right shoulder, the restriction on the scope of operation of the upper right shoulder, the awareness disorder of the longitude, the old disability, and the name c-A due to the physical disorder, the appraisal of which is 34% labor ability due to the calutism of 15% in accordance with the items 3-A of the crophere table two parts, brain, the old disability, and the name calutism.

(B) Method of assessing two parts, brain, and dys in the Mabrid disability assessment table;

According to the results of the examination of the two parts, the first part of the two parts, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, and the second part, the second part, the second part, the second part, the second part, the second part, the second part, and the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part, the second part of the two parts, the second part, the second part, the upper part of the two parts, and the second part, the upper part, the upper part of the defendant.

In the case of the plaintiff caused by a trouble, a bath booms for a long time, and a rail booms for stairs.

In light of the above circumstances of the plaintiff, it is reasonable to view that the labor ability loss rate of the plaintiff is a physical movement, cerebral, cerebral, and Ethical state b. B of B of B of B of B of B of B of B of B of B of B of Clodddral disability assessment table, and it appears that the Gyeongdo's awareness is 222 points in light of language assessment. The 75 minutes in the language assessment index, the 75 minutes in the language assessment, the 90 minutes in the understanding, the 65 minutes in the understanding, and the 27% in the name, and the 27% in the light of this part of the plaintiff's ability loss rate is recognized as 27% in this part.

(3) Calculation of the overlapping disability rate:

24% due to visual impairment, such as above, and 27% due to a mid-to long-term hindrance

Since the loss of labor ability is recognized, and the visual disability and the mid-term emergency disability are different from the part of the disability, it is 44.52% in calculating the duplicate disability rate. Therefore, the rate of loss of labor ability during the period of time after the discharge is 44.52%.

B) Calculation: The actual income calculated by integrating the above contents is a total of KRW 91,137,32 as shown in the following schedule of net income calculation.

A person shall be appointed.

2) Medical expenses

A) Wrons treatment expenses

According to the evidence evidence evidence evidence evidence Nos. 12 through 14, it is recognized that the sum of KRW 6,151,280 in the Gangseo-syak hospital, KRW 4,303,150 in the subcommittee Seoul Hospital, KRW 8,759,442 in the subcommittee hospital (i.e., KRW 8,693,642 in the period from November 21, 2013 to December 4, 2014 + KRW 19,213,80 in the aggregate of KRW 19,213,80 in the medical expenses from January 23, 2015) is spent by the Plaintiff.

(B) future treatment costs;

(1) Medical expenses such as physical therapy

According to the results of physical examination, it is necessary for the Plaintiff to receive physical treatment, work treatment, recognition treatment, and language treatment for one year in the future, and the expenses and frequency per time are as listed below.

A person shall be appointed.

For such treatment, KRW 1,904,280 per month is required, and thus, the argument in this case is required.

If the disbursement is to be made from the date following the closing date, that amount shall be KRW 19,278,740, such as the statement on the treatment expenses in the future calculation table in the attached Form.

(2) Medicines expenses

According to the results of physical appraisal, the plaintiff is every day aware of the improvement of the recognition function during the future life.

Inasmuch as the medicine cost requires 1,734 won per day, 632,910 won per day (i.e., 1,734 won x 365 days) as it is calculated by deeming that it was disbursed from the day following the date of closing the argument in this case, the amount is KRW 10,154,597, such as the medicine cost of the calculation table for future treatment costs in the annexed sheet.

(3) Total amount: 29,433,37 won (=medical expenses of KRW 19,278,740 + medicine expenses of KRW 10,154,597)

(iii) nursing expenses;

During the period of hospitalization, the Plaintiff claimed king expenses that the Plaintiff received the opening from her husband I during the period of hospitalization. In light of the content and degree of injury, it appears that the Plaintiff’s opening was necessary during the period of hospitalization in light of the Plaintiff’s husband’s opening, and since the Plaintiff’s husband’s opening had the opening, the Plaintiff’s opening was recognized as an opening expenses based on the daily wage from November 1, 2013 to January 6, 2014 during the period of hospitalization, which is 5,626,320 won (=83,975 won x 67 days) as sought by the Plaintiff.

4) Limitation on liability

(A) Liability ratio: 80 percent;

(b) Property loss: 145,410,861 won;

(i) The daily income of KRW 91,137,32 + the treatment expenses of KRW 19,213,872 + the future treatment expenses.

29,433,37 won + Nursing costs of 5,626,320 won

C) Damages after limitation of liability: 116,328,688 won (=145,410,861 won X0.8)

5) Consolation money

A) Reasons for taking into account: The background and result of the accident, the content and degree of the defendant's negligence, and the age and condition of the plaintiff, as shown in the argument of this case.

(b) Decision amount: 30,000,000 won;

6) Mutual aid

In the Defendant’s side, the sum of KRW 5,426,970, and KRW 3,890,00, and KRW 14,629,245, and the sum of KRW 5,312,275, and KRW 7,46,160, and there is no dispute between the parties that paid KRW 7,46,160 to the Plaintiff. Thus, the above KRW 22,075,405 (=629,245 + KRW 7,446,160) should be deducted from the amount of damages.

7) Determination on Defendant B’s assertion of offsetting profits and losses

Defendant B claimed that the Plaintiff should offset the amount of injury insurance to KRW 50,000,000,000,000,000,000,000 due to the instant disability, but the accident insurance is a kind of personal insurance and the amount of accident insurance is paid as the price for insurance premium, and the benefits are based on a reason different from the tort, and thus

D. Sub-determination

Therefore, the Defendants jointly compensate the Plaintiff for damages amounting to KRW 124,253,283 (=property damages amounting to KRW 116,328,688 + 30,000 - Deduction 22,075,405) and damages for delay calculated at a rate of 15% per annum under the Civil Act from November 2, 2013 to February 14, 2017, which is the date of the instant medical procedure, the Defendants have a duty to resist the existence and scope of the Defendants’ performance obligations.

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.