[1] The degree of and standard for the duty of care to be performed by a doctor when performing medical practice

[2] The degree of the burden of proof on the part of the victim to presume the causal relationship between the medical negligence and the result in the claim for damages caused by the breach of duty of care in medical practice

[3] In calculating the amount of damages due to medical malpractice, whether the physical nature of the victim or the risk of the disease, etc. may be considered as grounds for reduction (affirmative), and whether to determine the fact-finding or rate as to the grounds for mitigation of liability is the exclusive authority of the fact-finding court (affirmative in principle)

[1] Articles 390 and 750 of the Civil Act / [2] Articles 390 and 750 of the Civil Act, Article 288 of the Civil Procedure Act / [3] Articles 393, 396, and 763 of the Civil Act, Articles 202 and 432 of the Civil Procedure Act

[1] Supreme Court Decision 98Da45379, 45386 Decided March 26, 199 (Gong1999Sang, 772), Supreme Court Decision 2016Da26606, 26613 (Gong2019Sang, 133) Decided November 29, 2018 / [2] Supreme Court Decision 93Da52402 Decided February 10, 1995 (Gong195Sang, 1281), Supreme Court Decision 2016Da26606, 26613 (Gong2019Sang, 133) / [3] Supreme Court Decision 2018Da2971298 decided July 24, 1998

Plaintiff (Plaintiff is a minor, and the legal representative Nonparty 1 and the mother Nonparty 2) (Law Firm Godo, Attorneys Lee Yong-hwan et al., Counsel for the plaintiff-appellant)

○ University Hospital (Law Firm Locom, Attorneys Soh Chang-hwan et al., Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2016Na10802 decided May 25, 2018

All appeals are dismissed. The costs of appeal are assessed against each party.

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

1. Basic factual basis

The reasoning of the lower judgment and the record reveal the following facts.

A. A. Around September 12, 2012, Nonparty 2 (hereinafter “Masan”) was hospitalized in ○ University Hospital operated by the Defendant (hereinafter “Defendant hospital”) for only the inducement. The mother was administered with the delivery guidance system, and the mother appears to have seen the self-feasia at intervals of between 3:00 and 5 minutes on September 15, 2012, and was given birth of the Plaintiff around 23:03.

B. At the time of birth, the Plaintiff had almost little sound and movement, and at the new-born baby room, the Plaintiff entered that “the Plaintiff’s condition was 8% increased and decreased due to the two types of blood, the main body body body body body body, the arbitrosis (60 to 70 times per minute), the ambling body body, the ambling body 82% per minute, and the ambsium.” The medical personnel at the Defendant hospital diagnosed the Plaintiff with the mathal mphymology on September 15, 2012 and around 15:10 on September 16, 2012. The Defendant hospital diagnosed the Plaintiff with the mathal mphymology on the mathalopy, the mathal ambalopsis, the mathal typhymosis, the mathal ambalopsis, the ambal typhymosis, and the pulmonal pulmonal chron.

C. The Plaintiff shows symptoms, such as cerebral cerebral mathy, developmental disorder, and scarcity, due to overall cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral cerebral Sp

2. The occurrence of liability for damages (Defendant’s ground of appeal Nos. 1, 2 and 3)

A. When a doctor performs medical acts such as diagnosis and treatment, he/she has the 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 nature of the duties of managing the patient’s life, body, and health. A doctor’s duty of care shall be based on the level of medical practice performed in the clinical medical field, such as a medical institution, at the time of performing the medical act. The level of medical care refers to the so-called medical consciousness generally known and recognized and recognized at the time of the medical act. As such, the level of medical care ought to be determined at a normative level in light of the environment and conditions of the medical act, characteristics of the medical act, etc. (see, e.g., Supreme Court Decisions 98Da45379, 45386, Mar. 26, 199; 2016Da26606, Nov. 29, 20

In a claim for damages due to a breach of duty of care in medical practice, where the injured party proves that the act of medical negligence based on the common sense of ordinary people was committed during a series of medical practices and that other causes than a series of medical practices could not exist among the results, the Supreme Court has established to ease the burden of proof so as to estimate the causal relationship between medical negligence and the result and to impose liability for damages (see, e.g., Supreme Court Decisions 93Da52402, Feb. 10, 1995; 2016Da266606, 26613, etc.).

The court shall judge whether the alleged facts are true in accordance with logical and empirical rules, taking into account the overall purport of pleadings and the results of the examination of evidence (Article 202 of the Civil Procedure Act). The recognition of facts, and the selection and evaluation of evidence, unless it exceeds the bounds of the principle of free evaluation of evidence, are within the discretionary power of the fact

B. For the following reasons, the lower court recognized the Defendant’s liability for damages on the ground that the medical personnel of the Defendant hospital was negligent by neglecting to observe the progress of the fetus and the fetus, and that such negligence caused the instant disability.

(1) On September 15, 2012, from around 21:00 to 22:50, on the day of delivery, the medical professionals at Defendant hospital did not prepare a record book of nursing the mother’s and the fetus’s condition and a part-time record book. The non-farcing examination (NST) was carried out by attaching an electronic device to the mother from the time when the mother was hospitalized in a part-time room to the time when the mother moves into a part-time room and displayed it on the part of the mother to the time when the mother moves into a part-time room. The examination is conducted to diagnose the fetus’s home death, etc. at an early stage and to provide appropriate treatment accordingly. It is difficult to readily conclude that the non-farcing examination record (Evidence B) submitted by the Defendant to the Defendant was against the mother, and it is reasonable to view that the non-farcing examination record was not prepared from around September 15, 2012 to 200.

(2) Even though the Plaintiff, who was a fetus from around 21:00 to 22:50 on September 15, 2012, was in a clinical state, such as the state of home care, respiratory distress, etc., the medical personnel of the Defendant hospital neglected to observe the progress of the fetus and the fetus, and failed to find appropriate treatment.

(3) The condition of the pregnant woman and the fetus was all normal in addition to the symptoms of reduction in pregnancy to the pregnant woman before delivery. The certificate of reduction in pregnancy is not harmful to the pregnant woman and the fetus, but does not require special treatment during the pregnancy period. Unless the defendant proves that the disability in this case occurred due to reasons other than negligence due to the progress observation by the medical staff of the Defendant hospital, it is presumed that the negligence by the medical staff of the Defendant hospital was the cause of the disability in this case.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower judgment is justifiable in light of the foregoing legal doctrine. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the causal relationship with medical malpractice and the exercise of the right of

3. Limitation on liability for damages ( Plaintiff’s ground of appeal)

A. Where a harmful act and the victim's causes concurrently occur or expanded to cause damage, even though the victim's causes are irrelevant to the victim's causes, such as the risk of physical talent or disease, in light of the form or degree of the disease, if it goes against the principle of comparative negligence, the court may determine the amount of compensation and apply the principle of comparative negligence to the victim's causes contributed to the occurrence or expansion of the damage by applying the principle of comparative negligence. The determination of fact-finding or the ratio of liability mitigation in the claim for damages falls under the exclusive authority of the fact-finding court unless it is recognized that it is remarkably unreasonable in light of the principle of equity (see Supreme Court Decision 98Da1270 delivered on July 24, 1998, etc.).

B. The lower court limited the Defendant’s liability to 20% by taking account of the fact that it is difficult to accurately diagnose the pulmonal difficulty of the main organ household or fetus solely with the measurement of the number of fetus hearts, and there are many cases where the cerebral marine damage, etc. in the process of oxygen and delivery due to the corrosion before and after the delivery, but it is difficult to find out the cause of cerebral marine, and there are many cases where the main organ household and the pulmonal difficulty may occur during normal delivery.

C. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on limitation of liability.

4. Conclusion

The appeal by the plaintiff and the defendant is dismissed in entirety as it is without merit, and all costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee Dong-won (Presiding Justice)