2018Da211853 Compensation (Definition)

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Seoul High Court Decision 2016Na2034067 Decided January 25, 2018

May 30, 2018

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The lower court, on the grounds stated in its reasoning, determined that it is difficult to recognize the Defendant’s negligence in relation to the instant first and second surgery and that with respect to the instant third surgery, it was difficult to recognize that the Defendant’s negligence in the operation and the Defendant’s negligence in the process would have been prevented if the Defendant properly observed the progress. Examining the record in accordance with the relevant legal doctrine, the lower court’s aforementioned determination is justifiable. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the relevant legal doctrine.

2. As to the assertion of violation of duty of explanation

(1) A doctor is obligated to explain to a patient or his/her legal representative on the premise that the patient's medical treatment method and necessity, expected risk, side effects, etc. in light of the current medical level at the time, and to allow the patient to decide whether to receive the pertinent medical treatment after sufficiently considering the necessity and risk, etc. (see, e.g., Supreme Court Decision 2005Da5867, May 31, 2007).

Even in cases where a physician fails to explain the above matters to a patient, the so-called “Immunity by family consent that the physician does not assume responsibility for failing to explain if it is acknowledged that the patient consented to medical treatment even if the patient explained,” is exceptionally granted only when the patient clearly predicted the patient’s consent (see Supreme Court Decision 2014Da22871, Oct. 29, 2015).

(2) The lower court determined that it is difficult to recognize infringement of the right to self-determination due to the Defendant’s violation of the duty to explain, considering the following: (a) the Plaintiff’s written statement of written consent on the instant third surgery (the instant third surgery) received from the Defendant is insufficient to recognize that the Defendant had given specific and sufficient explanation to the Plaintiff on the method and necessity of the surgery, side effects after the surgery, etc.; (b) the Plaintiff had already undergone the same kind of surgery including the surgery received from a Fsung surgery and a member of the National Assembly; (c) the Plaintiff had experience in correcting the side effects; and (d) the Plaintiff had been undergoing several types of sexual surgery on other parts, even if there is a risk of side effects between the third and the two parts, it was clearly anticipated that the Plaintiff would have given consent to the third and the third part of the surgery, even if there was a risk of side effects, and thus, it was difficult to recognize the Plaintiff’s consent to the third operation.

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

According to the above legal principles, in order to be exempted from the Defendant’s responsibility for failing to provide the necessary explanation to the Plaintiff in connection with the third operation of this case, it should have been clearly predicted that the Plaintiff would consent to the third operation even if the Plaintiff explained. Rather, according to the reasoning of the lower judgment, it is difficult to recognize this solely based on the circumstances indicated by the lower court. Rather, as the Plaintiff did not have any specific effect even after receiving the third operation from another doctor from the F sexual surgery and the council member, it can be known that the Defendant received the first operation of this case (e.g., e., e., e., g., e., e., e., g., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., the third operation., e., e., e., e., the third operation.

(4) Nevertheless, the lower court erred by misapprehending the legal doctrine on the doctor’s duty to explain that the Plaintiff was clearly anticipated to consent to the third alcohol alcohol in this case solely based on the circumstances indicated in its reasoning.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Min Il-young

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Kim Jae-in