[1] The degree of duty of care to be performed by a doctor in the course of performing a medical act, and the meaning of the medical standard

[2] Whether notifying the patient of the possibility, etc. of such side effects in administering a drug that is likely to cause a serious side effect is included in the duty to explain in the medical treatment (affirmative), and the content and degree of the required description

[3] The case holding that a public health clinic, etc. in charge of medication has a duty of care to explain the possibility of the above side effects, specific symptoms, and response measures to the patient, and the explanation thereof should be given in detail in the case where the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the 'the '

[1] In performing medical acts such as diagnosis and treatment, 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 patient’s nature of the duties of managing the patient’s life, body, and health, and the same duty of care is required as long as not only the surgery for the patient, but also the surgery for the treatment, and the surgery of the medicine for the treatment is included, and as such, the same duty of care is also required. Such a duty of care is based on the level of medical practice performed in the field of clinical medicine such as a medical institution at the time of performing the medical act. The level of medical care refers to a so-called medical consciousness generally known to, and being human being, at the time of the medical act.

[2] In administering a drug that is likely to cause a typical side effect, such as visual and abnormal effects, notifying the patient of the possibility of such side effects and measures necessary to prevent the aggravation of symptoms or to restore to its original state in such a case constitutes an essential constituent part of the medical treatment as a duty to explain and explain the observance of the behavior guidelines with the care for safety in order to prevent risks arising from the administration of the drug and ensure the success of the treatment. The required explanation is a duty to explain and guide the specific information in accordance with the circumstances such as the level of education, age, and physical and mental condition of the patient, even though the possibility of occurrence of such side effect is high.

[3] The case holding that a public health clinic, etc. in charge of medication has a duty of care to explain the possibility of the above side effects, specific symptoms and response measures to the patient when administering the medication so long as there is a risk that the 'ttol' might cause a serious side effects such as crypology, etc., the patient should immediately stop taking use of the medication and take measures to consult with the public health clinic so that the patient can take measures to stop taking advantage of the side effects immediately after the patient is aware of the symptoms of the side effects.

[1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act / [3] Article 750 of the Civil Act

[1] Supreme Court Decision 98Da12270 delivered on July 24, 1998 (Gong1998Ha, 2216), Supreme Court Decision 98Da45379, 45386 delivered on March 26, 199 (Gong199Sang, 772), Supreme Court Decision 98Da50586 delivered on January 21, 200 (Gong2000Sang, 470), Supreme Court Decision 200Da16237 delivered on April 26, 2002 (Gong202Sang, 1229), Supreme Court Decision 2002Da3822 delivered on January 24, 2003 (Gong203, 705Sang, 705)

Plaintiff 1 and three others (Attorney above-appellee)

Republic of Korea and one other (Law Office of Daejeon, Attorneys Kim Yong-deok et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2003Na4387 delivered on October 14, 2004

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

1. The judgment of the court below

제1심판결을 일부 인용한 원심은 그 채택 증거를 종합하여, 원고 1(이하 '원고'라고만 한다)은 1999. 2. 24. 부여군 보건소에서 폐결핵 판정 및 결핵약 복용 처방을 받고 위 보건소 결핵실 담당 진료원인 오길자 등으로부터 결핵환자에게 일반적으로 처방되는 아이나, 에탐부톨(EMB), 피라진아미드, 리팜피신의 4가지 약품을 한 달 단위로 교부받아 복용하기 시작한 사실, 원고가 복용한 에탐부톨은 결핵환자에게 일반적으로 처방되는 약품으로서 그 복용시에 드물게 시력감퇴가 발생할 수 있다는 것은 결핵관련 의료종사자들에게 널리 알려진 사실이고, 일반적인 약품정보 등에도 설명되고 있으며, 보건복지부 발행의 1998년도 '결핵관리사업편람'에서는 에탐부톨의 부작용인 급격한 시력감퇴가 나타나는 경우 그 복용을 곧 중단하도록 지도하게 되어 있으며, 보통의 경우 그 복용을 중단하면 시력이 서서히 회복되는 것으로 알려져 있는데, 원고는 1999. 2. 24.부터 1999. 6. 28.까지 위 보건소의 처방에 따라 처음 2개월은 23.5㎎/㎏, 그 후로는 15.7㎎/㎏을 복용한 사실, 원고는 1999. 6. 26. 부여읍 소재 박민영 안과에 들러 약 3, 4일 전부터 시야가 흐리다는 이유로 상담하였다가 시신경염(의증)의 진단을 받았는데, 위 소외 1은 1999. 6. 28. 원고로부터 이를 전해 듣자 즉시 에탐부톨의 투여를 중지하고 나머지 약제만으로 결핵약을 조제하도록 조치한 사실, 원고는 에탐부톨의 복용 중지에도 불구하고 시력이 회복되지 않았을 뿐만 아니라 1999. 7. 27. 대전 소재 이안과에서 '결핵약 복용에 의한 약물유발성 시신경 병증'의 진단을, 1999. 11. 25. 서울 양천구 목동 소재 이화여자대학교 부속병원에서 '양안시신경 위축'의 진단을, 2000. 5. 10. 서울특별시립 보라매병원에서 '에탐부톨을 투여중인 상태에서 발생한 시신경병증으로 독성 시신경병증이 가장 의심되는 질환'의 진단과 함께 '우안 0.05, 좌안 0.05, 시각장애 3급 1호'의 판정을 각 받은 사실, 원고는 1999. 9.경 위 보건소에서 폐결핵 완치판정을 받았으나, 원고의 시력은 위 보건소에서의 1999. 2. 24.자 최초 진료 당시에는 양안 각 1.0으로 측정되던 것이 2001. 9. 5. 보라매병원에서 측정한 결과는 우안 0.02, 좌안 0.01로 나빠지게 된 사실, 원고는 1999. 2. 24.자 위 보건소 진료 당시 위 소외 1로부터 결핵약의 복용방법, 주의사항(금주, 금연, 과도한 노동중지 등)과 함께 '이상증세가 있을 경우 보건소에 나와 상담, 검진을 받도록' 고지받았음에도 1999. 3. 18.경 간기능 재검사를 위해 위 보건소를 방문한 것 이외에는 1999. 4. 24. 및 5. 24.의 각 정기 검진예정일에도 보건소를 방문하지 않고 처를 시켜서 약만 수령해 가는가 하면 복용 도중에도 술을 자주 마시고 밤늦게까지 전등 불빛 아래에서 버섯재배작업을 하였던 것으로 알려진 사실 등을 인정한 다음, 위 인정 사실에 의하면 위 보건소 결핵담당 진료원인 소외 1 및 충청남도 내의 보건소 등록 결핵환자들에 대한 진단 및 치료 등의 의료를 담당하는 공중보건의인 소외 2 등으로서는 결핵환자에 대한 보건소 의료진으로서의 주의의무를 다하였다고 봄이 상당하고, 한편 의사 등 의료종사자에게 요구되는 의료행위에 수반되는 부작용 등의 설명의무는 그것이 당해 의료행위로 인하여 예상되는 위험이 아니거나 당시의 의료수준에 비추어 예견할 수 없는 위험인 경우에까지 요구되는 것은 아니라 할 것인데, 위 소외 1 등은 결핵환자에 대한 보건소 의료진으로서 당시의 의료수준과 여건하에서 요구되는 설명의무를 다하였다고 봄이 상당하다는 등의 이유를 들어 원고들의 청구를 모두 기각하였다.

2. Judgment of the Supreme Court

A. First, the court below rejected the plaintiff's assertion that, at the time of the first medical examination on February 24, 199, the plaintiff received tuberculosis from the non-party 1, and the plaintiff's side effects "it can lead to a red-surine and red-surine against his body." The plaintiff's assertion that, in response to the plaintiff's first medical examination on February 24, 199, the plaintiff's assertion that, despite the plaintiff's request for an interview with the doctor in charge, there are abnormal symptoms that the snow has been infringed on several times, and that, even though the snow has been claimed to the non-party 1, the plaintiff's request for an interview with the doctor in charge was only a temporary phenomenon and continued to use it. In addition, the court below's determination of facts that the non-party 1 notified the plaintiff that "if there is an abnormal or abnormal symptoms with the tuberculosis's taking method, counseling and examination, it should not be viewed that it violated the rules of evidence and consultation with the public health clinic at the time of the above tuberculosis.

B. However, it is difficult to accept the court below's decision that the court below did not violate the duty of care required for medical treatment in the course of administering the above tuberculosis.

A physician has a duty of care to take the best measures required to prevent danger 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 as long as the surgery for the patient, as well as the surgery for the patient, and the medication of the medicine for the treatment, is included in the habitation of the body, the same duty of care is also required. Such medical care is based on the level of medical practice performed in the field of clinical medicine, such as medical institutions, at the time of the medical practice. The medical level refers to the so-called medical consciousness generally known to, and being dead, at the time of the medical practice. As such, the level of medical care is ordinarily known to, ordinary doctors at the time of the medical practice, considering the environment and conditions, the peculiarity of the medical practice, etc. (see Supreme Court Decision 98Da12270, Jul. 24, 1998).

However, according to the records, other than the above facts acknowledged by the court below, the medical care personnel appointed to take charge of minor health care even if they do not intend to do so under the Act on Special Measures for the Health and Medical Services in Agricultural and Fishing Villages, etc., and the Enforcement Decree thereof. The above tuberculosis management guidelines, etc. lists all kinds of side effects of 4 medicines administered to tuberculosis patients, and classify them as 'Immediate suspension of medication', ' consecutive medication', 'continction at the time of mitigation of symptoms after medication, 'continction', 'continction', 'continction at the time of elimination of 9 times', 'continction', 'continction at the first time, 200 times after the outbreak of 9 times', 'the first time after the outbreak of 9 times', 'the first time after the outbreak of 9 times', 'the first time after the outbreak of 6 times', 'the most significant side effects of the medication of this case.'

In full view of the above facts and the above facts, symptoms, such as vision and spathitis, which occurred to the plaintiff after the taking of the search team of this case, are widely known to the medical community due to the typical and representative side effects of the above search team, not only the medical community, but also the medical community under the guidelines for the health care services of the public health center, so long as it is difficult to see that there is little minor or little possibility to disregard the side effects of tuberculosis patients in light of the contents and frequency of occurrence, the above non-party 1, etc., who is in charge of the administration of the plaintiff, should be deemed to have a medical care duty to explain the possibility of the above side effects and the specific symptoms and response measures for the medication of the plaintiff. Furthermore, in this explanation, it should not be deemed that the plaintiff could not immediately stop taking advantage of the above side effects and consult with the public health clinic immediately, and if so, it should not be deemed that the plaintiff's explanation or consultation with the above non-party 1, etc., stated that it should be deemed to be a general warning or consultation with the public health clinic.

Nevertheless, the court below's rejection of the claim of this case without making necessary deliberation for ascertaining the violation of the above duty of care and the existence of specific causal relationship between the fact that the above non-party 1 et al. violated the above duty of care and the fact that the visual disability shown on the plaintiff was caused by the medical personnel of a public health clinic, emphasizing only the plaintiff's unfaithful attitude of care and the special characteristics of the medical care of the public health clinic as shown in the above abstract directions as mentioned above and the above tuberculosis taking advantage of the above abstract directions, and there is an error of law by misunderstanding the legal principles concerning the medical care duty required in the administration process of the medicine having concerns over side effects, and

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)