Plaintiff 1 and one other (Law Firm Jeongam, Attorney Shin Jae-in, Counsel for the plaintiff-appellant)

Defendant (Attorney Ansan-ju, Counsel for defendant-appellant)

July 15, 2010

Seoul Southern District Court Decision 2007Gahap14781 Decided October 2, 2008

1. The part against the plaintiffs of the money that orders payment under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff 1 26,113,983 won, 30,113,983 won, and 5% per annum from December 25, 2006 to August 19, 2010, and 20% per annum from August 20, 2010 to the day of complete payment.

2. The plaintiffs' remaining appeals are dismissed.

3. The total costs of the lawsuit shall be five minutes, and the plaintiffs shall bear the remainder, respectively, and the defendant shall bear the remainder.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiffs 112,198,082 won and each of them shall be 5% per annum from December 25, 2006 to the rendering of the judgment of the first instance, and 20% per annum from the next day to the full payment day.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by adding up the overall purport of pleadings as a result of the request for the examination of medical records to the head of the relevant university attached to the Egrative University of Egratives of Egratives of Egratives of Egratives No. 1 through 4, Eul evidence No. 1-2-1, Eul evidence No. 3-1, 8, 9, 10, Eul evidence No. 4-1 through 4, and the court of first instance as a result of the request for the examination of medical records

A. As the early childbirth, the Plaintiff 2 was hospitalized in the Defendant Hospital for the first time on December 24, 2006, following the diagnosis by the Defendant’s women and clinics (hereinafter “Defendant Hospital”). The Plaintiff was hospitalized in the Defendant Hospital for the first time on December 14:50.

B. Around 00:15 on December 25, 2006, the 100:15 Self-Governing Province began to have the second part of the part, which was opened 10cm, and around 00:37 on the same day, Plaintiff 2 moved the fetus’s head from the part air room to the part of the part of the part of the part of the part of the part of the mother, while the fetus’s head reaches the part of the part of the part of the mother. Around 00:57 on the same day, Plaintiff 2 met the part of the part of the part

C. After the delivery, a newborn baby score shows 10 points for both one and 5 minutes, and the reaction, root, and color color of the skin, etc. of the heart, respiratory, pulmonary, and scopic, and scopic, but on the same day, the sound suffered at around 06:20 on 06:20 on the same day was measured at 43 times, and the pulmonary, was measured at 43 times, and did not respond easily to it. On the same day, around 07:35 on the same day, the absorbing of the newborn baby was measured at 39 times.

D. At around 07:43 on the same day, the Defendant: (a) taken measures to transfer newborn babies to the Guro University Hospital; (b) the results of the diagnosis at the above hospital revealed that: (c) the two parts of the newborn baby were small-scale, the expansion of string lines, the double-divant type, and the double-divant type were discovered; (d) CT shooting was confirmed; (c) treatment of the symptoms was performed on December 28, 2006, but the newborn baby died on or around 19:50 on December 28, 2006 (hereinafter “the dead newborn”).

E. As a result of the autopsy, the two parts of the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right and the upper right are considered

2. Whether liability for damages arises;

A. The plaintiffs' assertion

The plaintiffs asserted that the defendant has lost the opportunity to choose the right of self-determination by failing to properly explain the state of the mother and fetus and the necessity of the inhaled part before trying only the inhaled part, and the anticipated risks therefrom, and thus, the defendant is liable to compensate the damages suffered by the plaintiffs.

(b) Medical knowledge related to the inhaled delivery;

[Ground for recognition: The statement No. 5-1, 2, and 3 of the evidence No. 5-2, the result of the entrustment of the examination of the medical records to the head of the Giman University affiliated with the Giman University of the first instance court, the result of the inquiry about the head of the above wooden hospital of this court, the purport of the whole pleadings]

(1) In a case where the head of a fetus spreads out of the quality due to the negative pressure of the fetus after attaching the thalth of the fetus with an adequate negative pressure to the head of the fetus, and then the knife the knife of the instant cups was satisfly cut out of the body of the fetus, and where the balth of the fetus delays in the second half of the fetus, the balth of the fetus is not good, and where the situation of the fetus is not good, it is necessary to reduce the second part of the body, taking into account the mother’s condition (in a case where the mother’s mother is born, the balth of the mother’s heart function, cerebrovassis, or neutism-related disease), the balth of the body of the fetus was completely opened, and the balone escape certificate, the second part of the fetus escape certificate, and the second part of the fetus’s fetus’s shape is not entirely doubtful if the balone is not entirely doubtful.

(2) If the head satise (the advanced part of the fetus is not the face or satis), the complete expansion of the satise part, the satisfafafafafafafafafafafafafafafafafaf, the satisfafafafafafafafafafafafab, the existence of the satchafafafafafafafafafab, and the satisfafafafafabbb, the sat where the satafafafaf is accurately known of the satafafafafafaf, the necessary conditions are met when the sats can be performed by the satisfafafafafafafafa

(3) For the reduction of the merger certificate and the success of the inhaled part only by the inhaled part, the cupped part’s instant cup is attached to the center of the following string part, the sum of 2 cms and the winnings are attached to the center of the inhaled part, and the towing string together with the strings, and the towing strings must be identical to the strings of the strings. The failure rate of the inhaled part is known to 10-13%, which is the location of the strings balance or inappropriate cups.

(4) In the case of inhaled delivery, it is known that the occurrence of climatic or prop-freeing transfusions increases compared to natural-quality childbirth. 2) In a case where a small-sized fetus occurs and a small-scale occurs in the course of adjusting the two parts of the body of the mother and the fetus in the process of adjusting the body of the body of the fetus, not only the inhaled part, in a case where the fetus suffers from a congenital strokeic disease or a strokeic disease, it may occur in a case where the fetus suffers from a congenital strokeic disease. The degree of the inhaled machine’s in order to reduce the merger certificate, such as a prop-off transfusion due to the inhaled part of inhaled part, it is recommended that the 500m or 600m HG should not be transferred.

C. Determination

(1) Failure to record medical records

Medical records are prepared to allow medical personnel in charge of medical treatment to accurately record the patient's condition and progress of medical treatment without omitting information, and allow other relevant medical personnel to provide such information for the patient to use for the treatment of the patient continuously thereafter, and allow other relevant medical personnel to use such information as data to determine the propriety of the medical treatment after the medical treatment is terminated (see Supreme Court Decision 2007Da80657, Jul. 24, 2008). The medical records submitted by the Defendant (No. 1 through 5, No. 2-1, No. 2-1, No. 3-1, No. 3-1, No. 2-1, No. 3-11 of the evidence No. 1-2, No. 2006, Dec. 25, 2006, where Plaintiff 2 entered the delivery room from around 00:37 on December 25, 2006 to around 07.

In addition, the medical examination and treatment (Evidence No. 3-1) stated that the term "delivery is dedelivery due to lack of ability by the mother under the influence of the mother," but this part is nothing more than written by the person who written another content of this medical examination and treatment because it does not seem to have been prepared by the person who written the different content of this medical examination and treatment, considering that the body weight, gender, and visual aspect of the child delivered has completely changed from the body weight of the child delivered to him/her, gender, and writing instruments.

Therefore, the situation at the time of delivery is bound to be recognized by comprehensively considering the whole purport of the pleadings in each entry in No. 4-1 and No. 2 of the evidence No. 4-2.

(2) Fruits in the process of inhaled delivery.

According to Eul evidence 4-3, 4, and 6-1, 2, and 3 of evidence 6-1, and Gap evidence 7-1 to 5, the defendant's investigation agency may see that "the mother's head at the time of giving birth may her child, and the mother's head was able to her ability only once before her birth," but the mother's head was 0 percent of 10 percent of 4 percent of 4 percent of 4 percent of 4 percent of 4 percent of 4 percent of 4 percent of 4 percent of 5 5 5 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 5 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 . 4 4 4 4 4 4 . 4 4

In addition, according to the statements in Eul evidence 2-1, Eul evidence 2-3-1, Eul evidence 3-1, 8, 9, and 10, there is no evidence to prove that the plaintiff 2, an early childbirth father, had any physical abnormal signs until the delivery of the fetus or the fetus, or there is any congenital punishment, on December 24, 2006, when the 14:50 percent of the 38th pregnancy was lost, he was admitted to the defendant hospital at around 00:15 of the next day, and the two delivery was commenced on December 25, 200:15 of the same year, and until 00:33 of the same day, there is no other evidence to prove that the fetus or the fetus had any congenital punishment until the delivery of the fetus or the fetus.

In light of the above facts and the fact that the average 5-minutes and two-minutes and the average 50-minutes and 20-minutes and 10-minutes and the defendant's 1-minutes and 4-years and 2-years and time of delivery (the result of the medical record appraisal commission for the above heads of hospitals at the court of first instance), the plaintiff 2's delivery time and 42-years and the time and progress of delivery (the defendant's assertion that the hair of the fetus reached 10-minutes and the progress of 10-minutes and the defendant's 10-minutes and 5-minutes were found to have not been found to have been found to have been found to have been found to have been found to have been aware of the above 1-minutes and 5-minutes and 1-minutes and the fact that the defendant's treatment record was found to have been found to have been found to have been found to have been found to have been used on the left-hand side of the hospital.

Although there is doubt as to whether there has been a certificate of adaptation for the inhaled part of the inhaled part of “the case where the woman has the intention to reduce the part-time part-time part-time part-time part-time part-time part-time part of the part-time part-time part-time part-time part-time part-time part-time part-time part-time part-time part-time part of the part-time part-time part-time part-time part-time part-time part-time part-time part-time part-time part of the part-time part-time part-time part-time part-time part-time part-time part-time part

(3) Presumption of causation

On December 25, 2006, 07:43, after delivery, Defendant Hospital continued to 06:20 the same day, suffering from respiratory level 43 times, and the respiratory value has decreased more than 39 times (Evidence B 10), even in natural childbirth, small, double blood, and sporadism may have occurred, and the two types of transfusion have occurred without any damage. However, in light of the fact that the Defendant’s exposure to the instant two mouths, such as humconsissis, was accompanied by blood transfusion, and that there was no evidence to acknowledge that there was an inappropriate level of injury to the 4th anniversary of the fact that there was an inappropriate sporadic sporadic spoke, sporadic sporadic spoke, and that there was an inappropriate level of injury to the 1stic sporadic spoke, other than the spodic sporadic spoke, and that there was no evidence to acknowledge the above 4thic stopy.

(4) Violation of duty of explanation

In principle, the doctor in charge shall provide the patient with an opportunity to avoid the occurrence of a serious result by explaining the symptoms of the disease, the details and necessity of the method of treatment or diagnosis, etc. of the disease before the act, and the risk likely to occur as a result of the death, etc. and by selecting whether the patient is entitled to receive the medical act by exercising his/her right to self-determination, and if the patient loses his/her opportunity due to his/her failure to perform the explanation, the doctor is obliged to suffer mental suffering from the loss of his/her right to self-determination.

In addition, the duty to explain is an essential procedural measure required for a doctor in the course of going back to an inception medical practice, and in light of the fact that it is extremely easy for a doctor to prove the fulfillment of the duty to explain through a document, while it is extremely difficult to prove that the patient has not fulfilled the duty to explain in the patient's side, barring special circumstances, the duty to explain is interpreted to have the burden of proving the performance of the duty to explain on the side of the doctor as the principle of guiding the fair and reasonable burden of damage and the need for a uniform interpretation of the legal system (see Supreme Court Decision 2005Da5867, May 31, 2007).

However, as seen earlier, inhaled cupped cups are administered to assist only the part of the fetus using the pressure by attaching the inhaled cup to the head side of the fetus and raising the sound pressure to the stimulper, and using the pressure. The fact that the possibility of stimuling outing outing outing outing and the proppersing outing is high (in the first instance court's inquiry result on the head of the relevant hospital), depending on whether inhaled cups are light quality or dalivating (the result of inquiry about the above stimulsium), the size of cupped cups is diverse, depending on whether inhaled cupped cups are dead quality or dalivating (the increase rate of negative pressure). In light of the above, it is clear that there is no obligation to explain the patient's physical side effects at the time of the merger to the plaintiff's 2 or more times before taking advantage of the need for an immediate stimulic treatment (the result of the examination of the medical records at the first instance court's entrustment), and the defendant attempted only the plaintiff's physical side effects at the time of the merger.

However, there is no evidence to prove that the defendant fulfilled the above duty to explain to the plaintiff 2, and instead, considering all the above circumstances such as time in the delivery room in addition to the statement in Eul evidence No. 4-3, it can be inferred that the defendant did not perform the above duty to explain before trying for inhale only. Thus, the defendant is obligated to pay consolation money due to violation of the duty to explain to the plaintiff 2.

However, as long as the violation of the duty of explanation is limited to the infringement of the patient's right of self-determination, the plaintiff 1's claim is not accepted, not the party or the exercise subject of the right

D. Limitation on liability

Medical practice is essentially accompanied by physical infringement, and even if all technologies provide medical treatment, it is highly dangerous act that makes it impossible to avoid unexpected results. Therefore, even if there is negligence on the part of a doctor or hospital, it seems to be in violation of the principle of equity to bear all damages therefrom. In the case of a natural-quality organ delivery in which the method of inhaled delivery is not involved, it may occur in the course of adaptation of the head of the fetus and the head of the fetus. In light of all the circumstances, it is limited to the defendant's liability due to the death of the deceased at 20%, taking into account all the circumstances, such as the fact that a small-sized organ may seriously occur, it may occur in the course of light-to-undering transfusion or protruding transfusion, and that a considerable percentage of the defendant's liability due to the death of the deceased is naturally cured.

3. Scope of liability for damages

(a) Property damage;

(1) Actual income

(A) Facts of recognition

○ Date of birth and gender: on December 25, 2006, women and children

○ Operation Period: From December 25, 2026 to December 24, 2066, the operation period from December 25, 2026.

○ Income: Urban Daily Workers (No. 68,965 won published on January 1, 201), and December 22

○ Cost of living: 1/3 mutual aid;

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 6

(b)Calculation;

168,139,833원 ≒ 68,965원 × 22일 × 2/3 × (332.3359-166.1055)

(2) Funeral expenses - The Plaintiffs

○ 3,000,000

[Ground for recognition] Unsatisfy

(3) Limitation of liability

○ 33,627,966 won (=168,139,833 won x 20%)

○ Funeral expenses: KRW 300,000 (=3,00,000 】 20% ± 2)

(b) consolation money;

In light of the background and result of the instant accident, the age of the Plaintiffs and the deceased, the relationship between the Plaintiffs and the deceased and the deceased, and other circumstances indicated in the instant argument, it is reasonable to pay to the deceased as consolation money the amount of KRW 10,000,000 (including the point of infringement of the right of self-determination), and KRW 4,00,000 to the Plaintiff 1.

(c) Inheritance relationship;

Since the deceased children died, KRW 33,627,966 and KRW 10,00,00 for consolation money and KRW 10,000 for consolation money and KRW 21,813,983 were succeeded to the Plaintiffs, who are property successors, respectively.

4. Conclusion

Therefore, the defendant is obligated to pay the plaintiff 1 26,113,983 won + 4,00,000 won + 300,000 won + 30,113,983 won (=21,813,983 won + 8,000,000 won + 300,000 won) and damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which is the date of tort, from December 25, 2006 to August 19, 2010, which is the date of the final judgment of the court of first instance, where it is deemed reasonable to dispute the scope and existence of the defendant's performance obligation, and the damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

The claim of this case against the defendant of this case is justified within the scope of the above recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance which dismissed all the plaintiffs' claims is unfair within the scope of recognition above, the part against the plaintiffs of the judgment of the court of first instance which partially accepted the plaintiffs' appeal, and the remaining appeal against the plaintiffs of the judgment of the court of first instance is dismissed as it is without merit.

Judges Sung-mun (Presiding Judge)

Note 1) The time from 10cc open to 10ccm to 10cc the fetus is to be delivered. In the case of the early childbirth, average 50 minutes.

2) According to the report of 2006, in the case of a climatic organ, 2.9 in the case of a climatic organ, while in the case of a climatic organ, 9.8 in the case of a climatic organ, the ratio of 9.8 in each climatic organ is shown. In the case of a climatic organ, the climatic organ is 1.3 in the case of a climatic organ, while in the case of a climatic organ, 2.2 in each climatic organ in the case of a climatic organ (the result of inquiry about the head of a cliol