[1] Whether a doctor's duty of explanation may be exempted solely on the grounds that there is little possibility that a risk, such as aftermathy or side effects, may occur in accordance with a doctor's specific content and medical practice (negative)

[2] The case affirming the judgment of the court below which recognized the doctor's liability for damages on the ground that the patient violated the duty to explain and infringed the patient's right to decide whether to administer the substance in the administration of the strokes which may cause a serious side effect of the strokesa

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

[1] Supreme Court Decision 92Da25885 delivered on April 15, 1994 (Gong1994Sang, 1434) Supreme Court Decision 94Da3421 delivered on January 20, 1995 (Gong1995Sang, 885) Supreme Court Decision 2002Da4843 delivered on October 25, 2002 (Gong2002Ha, 2867) Supreme Court Decision 2005Da5867 delivered on May 31, 2007 (Gong2007Ha, 949)

Plaintiff

Defendant 1 and one other (Law Firm Busan, Attorneys Yoon In-som et al., Counsel for the defendant-appellant)

Ulsan District Court Decision 2005Na664 Decided October 27, 2005

All appeals are dismissed.

The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Generally, a doctor has a duty to explain the relevant patient or his/her legal representative on the premise that the patient's symptoms, treatment method and necessity of the disease, anticipated risks, etc. are considered reasonable in light of the current medical standards and to allow the patient to choose whether to receive the relevant medical treatment after sufficiently comparing the necessity or risk, and such duty to explain cannot be exempted solely on the ground that there is little possibility of danger, such as post-treatment or side effects, etc., following the relevant medical treatment. In cases where post-treatment or side effects are highly dangerous or impossible to recover from the relevant medical treatment, notwithstanding the possibility of occurrence (see, e.g., Supreme Court Decisions 200Da4284, Apr. 15, 1994; 2005Da4825, Apr. 25, 2005).

According to the reasoning of the judgment below, the court below held that the defendants did not fully explain to the plaintiff on the side effects, etc. related to the prescription of the Switzerland No. 1 (medical record book) and there is no other evidence to acknowledge that the defendants fulfilled their duty to explain. The court below held that the defendants violated the right to explain when administering the ice No. 1 which may cause serious side effects of the sateroid death, in violation of the duty to explain. In light of the above legal principles and records, the court below's fact-finding and judgment are just and acceptable, and there is no error in the misapprehension of legal principles as to the existence and scope of the doctor's duty to explain.

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)