Plaintiff 1 and one other (Attorney Ansan-ok, Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon Byung-nam, Counsel for defendant-appellant)

November 24, 2016

Incheon District Court Decision 2014Gahap7052 Decided March 29, 2016

1. Of the judgment of the court of first instance, the part against the plaintiffs ordering additional payment is revoked.

The defendant shall pay to the plaintiff 1 4,682,16 won, 3,000,000 won to the plaintiff 2, and 5% interest per annum from July 6, 2013 to December 8, 2016, and 15% interest per annum from the next day to the day of full payment.

2. The remaining appeals by the plaintiffs and the appeal by the defendant against the plaintiffs are dismissed, respectively.

3. The total costs of the lawsuit shall be five minutes, and four of them shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay 181,11,157 won to the plaintiff 1 and 50,000,000 won to the plaintiff 2, and 50,000 won per annum from July 6, 2013 until the day following the day of service of a copy of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 15% per annum from the next day to the day of full payment.

2. Purport of appeal

A. The plaintiffs

The part against the plaintiffs in the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiff 1 the amount of KRW 155,227,476, and the amount of KRW 48,00,000 and each of them shall be paid 5% per annum from July 6, 2013 to the day following the service date of a copy of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 15% per annum from the following day to the day of full payment.

B. Defendant

Of the judgment of the first instance, the part against the defendant is revoked, and the plaintiffs' claim against the defendant corresponding to the above revoked part is dismissed.

1. Basic facts

A. Status of the parties

Plaintiff 1 is a person who was subject to the △△△△ Hospital located in ○○○○-dong (hereinafter “Defendant Hospital”) operated by the Defendant for the purpose of cutting down signboards and cutting off artificial disks from the Defendant, while Plaintiff 2 is the wife of Plaintiff 1.

B. The Plaintiff 1’s past history and the circumstances leading to the establishment of the Defendant Hospital

1) On August 10, 2012, Plaintiff 1 continued to provide the preservation treatment, such as physical therapy and negotition, at the hospital in the above hospital and its neighboring area (local) hospital located in Nam-gu, Incheon, Nam-gu, Incheon, where △△△△△△ Hospital was in operation of the conical method of cutting down side signboards via the front and rear bank. After the operation, Plaintiff 1 continued to provide the preservation treatment at the above hospital and its neighboring area (local) hospital.

2) On April 2013, Plaintiff 1 was urged by the medical staff at △△△△ Hospital (1) to implement a hydrotermathy Fussion (PLIF) in the future, as an operational treatment for Huuriaea, Plaintiff 1 was recommended by the medical staff at △△△△△△ Hospital.

3) On April 30, 2013, Plaintiff 1 was admitted to the Defendant Hospital, and around May 2013, Plaintiff 1 was in force at the Defendant Hospital’s hospital’s screen lamps (e.g., scramer and electric current generated, reducing and relaxing pains by using the scramer).

C. Execution, etc. of the instant surgery

1) On July 5, 2013, Plaintiff 1 complained of continuous needers (LBP) and bridges of both sides, and hospitalized in the Defendant Hospital.

2) The medical personnel of the Defendant Hospital conducted a field examination on Plaintiff 1 on the day of hospitalization on both sides. As a result, it was verified that the flateral L-Sicopay, L5 rokeed in L5 xure in L5 xure in L5 xure.

3) On July 6, 2013, the Defendant: (a) performed, with respect to Plaintiff 1 on a general anesthesia, the dratulation method and artificial disc insertion method; (b) the removal of conical signboards via the 5th century 1,000 square meters (hereinafter referred to as “instant operation”) after the extension of conical signboards between Plaintiff 1 and the 4-5 square meters; (c) and (d) the removal of the conical signboards via the 5th century and the artificial disc transshipment method (hereinafter referred to as “instant operation”).

4) On July 20, 2013, Plaintiff 1 discharged Plaintiff 1 from Defendant Hospital.

D. The passage and present status of Plaintiff 1 after the instant surgery

1) On August 1, 2013, Plaintiff 1 was diagnosed on February 25, 2014 on the basis of the results of the eja, etc. after the fact that Plaintiff 1 was admitted to the △△△ Hospital and performed at the place, based on the fact that Plaintiff 1 was found to have been in the hospital at the place, and was diagnosed on February 25, 2014, and the medical personnel at the above hospital cannot exclude the probability that the disease was caused by the blocking of the assistant principal at the time of the instant operation.

2) 또한, 원고 1은 2013. 9. 13. 사정장애를 이유로 인천 부평구 ▽▽▽로 소재 근로복지공단 ◎◎◎◎병원 비뇨기과에 내원하였으며, 이후 위 병원에서 시행한 전립선 초음파검사상 정낭의 과도한 팽창(prominently congested seminal vesicles) 소견이, 요도 내시경검사상 정구폐색 의심 소견이, 근전도검사상 제2-4 천골 부분에 구심성 신경경로 기능장애[afferent pathway dysfunction of sacral segment(S2-4)] 소견이 각 확인됨에 따라 근전도 이상과 정구폐색으로 인한 사정장애로 판단되어 2014. 1. 20. ‘남성 발기장애, 생식기반응의 부전’ 진단을 받았다.

3) 원고 1은 2014. 2. 5. 정액이 배출되지 않음을 이유로 서울 중구 (주소 2 생략) 소재 ◁◁병원에 내원하였고, 그곳에서 시행한 정액검사(semen analysis), 호르몬검사, 전립샘(prostate) MRI검사 등 결과를 토대로 2014. 2. 12. ‘2013년 7월 이후 발생한 것으로 추정되는 사정장애 및 역행성 사정’ 진단을 받았다.

4) 한편, 원고 1은 2013. 12. 11. 인천 남구 ▷▷로 소재 ♤♤♤♤♤♤♤의학과의원에 내원하여 그때부터 2014. 6. 20.까지, 2015. 6. 19.부터 2015. 8. 25.까지 약물투여, 정신요법 등의 통원치료를 계속하였는데, 위 의원 의료진은 정신건강의학과적 평가, 임상심리학적 평가 등에 비추어 원고 1은 스트레스로 인한 기억력 저하, 불행감, 불만족감, 의욕저하, 무력감, 누적된 분노, 화, 미래에 대한 걱정, 불안 등의 정서문제와 수면장애 등의 신체증상이 관찰되는 등 일상생활 적응력이 상당히 저하된 상태라고 판단하면서 ‘적응장애’ 진단을 하였다.

5) During the process of physical appraisal commission conducted by the first instance court on January 13, 2015, there was no sperm as a result of urine testing conducted on January 20, 2015. Although there was no fixed amount discharged as a result of a sperm testing conducted on January 20, 2015, the son was observed as a result of the urine testing conducted immediately on the ground that the said Plaintiff had a sense of view, and thereafter, it was confirmed that the arrogenis was created normally in the arromatic exchange conducted on January 23, 2015.

6) On December 17, 2015, Plaintiff 1 was diagnosed as “mar infertility” on the ground that in order to be pregnant in the future at △△△ Hospital, the sperm should be found in the exchange organization or urine for artificial insemination.

7) At present, Plaintiff 1, even though the previous contribution was good, shows symptoms of assessment disorder and reverse dynamics, which is highly likely to continue permanently.

E. Progress of the relevant lawsuit

1) On May 23, 2014, the Defendant filed a lawsuit against Plaintiff 1, Incheon District Court 2014Gahap54072, which sought confirmation of the existence of the Defendant’s obligation with respect to the instant medical treatment, etc. performed by the Defendant against the said Plaintiff (hereinafter “instant medical treatment”), seeking confirmation that the Defendant’s obligation does not exist in relation to the instant medical treatment, etc. performed by the said Plaintiff (hereinafter “instant medical treatment”).

2) On December 24, 2015, the above court rendered a ruling of recommending reconciliation with the purport that “ insofar as the case (the first instance court of this case) involving the instant medical treatment is pending between the Defendant and the Plaintiff 1, the Incheon District Court 2014Gahap7052 (hereinafter “instant case”) only requires the parties to the instant case with an indefinite effort and time without any particular benefits,” on the ground that “the Defendant only withdraws the said lawsuit and consented by Plaintiff 1.” The said ruling became final and conclusive on January 8, 2016 on the ground that both the Defendant and Plaintiff 1 did not raise any objection (hereinafter “instant decision of recommending reconciliation”).

(f) Relevant medical knowledge;

(i) an operation of a memorial signboard in need of transit on the frontline;

A) An operation of a memorial signboard in the front of the body of a person (hereinafter referred to as “former transit operation”) is to perform an operation by cutting it into the front part of the body of a person. The operation is divided into ① a balone-to-one-one-one-one-one-one-one-one-one-one-way-one-way-one-one-way-one-way-one-way-one-way-one-way-one-way-one-way-one-way-one-way-one-way-one-way-one-way-one-way-

B) The representative annexation of crypary cryparyary crypary crypary crypary crypary crypary crypary cryparyary crypary crypary crypary crypary cryparyary cryparyary cryparyary cryparyaryary cryparyary cryparyaryary cryparyary cryparyary cryparyary cryparyary crypary crypary

2) Circumstances of reverseness

A) The dynamic circumstance refers to the entry of a fixed amount into a luminous discharge without discharging it through the evisdo. Normally, the entrance of the light at the time of circumstances is closed, and the fixed amount is not entered into a luminous discharge. However, in the event of the neutism of the light light light light, the evisic circumstance may occur as the evisculation does not shut the evisic entrance at the time of the situation, and when there is a problem in the evisculation of the light light light light, the evisic circumstance may occur if the evisic evisic evisic eviscs (Supior Hpogasc Sympapathtic Pexus) is damaged, which is located on the front part of the evisic body involved in the control of the evisic light light light light light. Other reasons are known such as the evisic disease caused by the long-term urology, the operation of the evisic evisic evisic or the treatment

B) Although there are not many reports on the frequency of dynamics occurring during spine surgery, the literature is 0.42% from literature 3 1984 to 0.42% in 1955, and 5.9% in literature 4 in 1955, respectively, and according to the degree of neute damage, it remains a permanent disability.

[인정근거] 다툼 없는 사실, 갑 제1호증의 1, 2, 3, 갑 제3, 4, 5, 20호증, 갑 제6, 9호증의 각 1, 2, 갑 제7호증의 1 내지 4, 갑 제8호증의 1 내지 5, 을 제1호증의 1 내지 5, 7의 각 기재, 제1심의 ◈◈대학교 세브란스병원장 및 ◐◐◐대학교 서울병원장에 대한 각 진료기록감정촉탁결과, 제1심의 의료법인 ♡♡♡♡♡ ♡병원장에 대한 신체감정촉탁결과, 변론 전체의 취지

2. The plaintiffs' assertion

As seen below, Plaintiff 1 left a legacy due to Defendant’s medical negligence (hereinafter “aftermath of this case”). As such, the Defendant is liable to compensate for property and mental damages suffered by Plaintiff 1 and Plaintiff 2, who is the party to the treatment contract or the tort himself/herself, as the party to the treatment contract or the tort himself/herself.

A. The Defendant neglected to perform the best duty of care during the surgery, even though it is required to perform the surgery, and thereby, caused damage to Plaintiff 1’s superior principal, sub-principal, and sub-principal in the course of the instant surgery.

B. The Defendant did not explain to Plaintiff 1 before the instant surgery on the merger of dynamics, etc. that may arise after the instant surgery, and rather, infringed Plaintiff 1’s right to self-determination by emphasizing only the advantages of the instant surgery.

3. Determination on this safety defense

A. The defendant's assertion

The lawsuit of this case, for which the plaintiffs sought compensation against the defendant for damages caused by the medical treatment of this case, is unlawful as it violates the non-assignment agreement entered into with the defendant on February 21, 2014 (new assertion added at the trial).

B. Determination

According to the evidence evidence Nos. 4 and 5, Plaintiff 1 and the Defendant, on February 21, 2014, prepared a written confirmation (hereinafter “instant confirmation”). On May 16, 2014, it can be acknowledged that: (a) on February 21, 2014, Plaintiff 1 and the Defendant: (b) drafted a written confirmation stating that “the fundamental rights of the original and the Defendant shall be accepted without raising any objection to the final outcome of the current marine insurance liability insurance; and (c) the original and the Defendant’s waiver of any claim, such as a claim for damages, a lawsuit claiming damages, a lawsuit claiming damages, and a lawsuit claiming the existence of a debt; and (d) a three-class damage adjustment corporation (hereinafter “sub-class damage adjustment”) entrusted by Hyundai Marine Insurance Co., Ltd. with the duty of evaluating damage by the Defendant on May 16, 2014.

However, in full view of the facts alleged by the party members and the purport of the entire arguments as seen above, the defendant, after preparing the confirmation document of this case and providing guidance on insurance processing of Type C damage adjusting, filed a lawsuit against the plaintiff 1 on May 23, 2014. The plaintiffs filed the lawsuit of this case against the defendant on June 12, 2014. The plaintiffs filed a lawsuit of this case against the defendant on January 12, 2014. As long as the lawsuit of this case is pending between the plaintiff 1 and the defendant on January 8, 2016, the lawsuit of confirmation of existence of existence of the prior obligation is limited to an indefinite effort and time without any particular benefits, and the defendant withdrawn the lawsuit of confirmation of existence of the prior obligation and agreed by the plaintiff 1, which included the defendant's non-existence of the judgment of the court of first instance prior to the conclusion of the judgment on the non-existence of the contract of this case. In other words, it cannot be seen that the plaintiff 1 and the defendant were included in the lawsuit of this case's non-existence of the judgment of this case.

4. Judgment on the merits

(a) Occurrence of liability for damages;

1) Violation of duty of care and causation in the course of the instant surgery

A) In order for a patient to be liable for tort due to breach of duty of care in medical practice or for non-performance of duty of care to be established, the causal relationship between the violation of duty of care in medical practice, the occurrence of damages, and the violation of duty of care and the occurrence of damages should exist. However, the process of medical practice is only the area where the patient himself/herself is in need of highly specialized knowledge, and the patient himself/herself can only be aware of his/her part, and the medical method to achieve the result of medical treatment depends on his/her own discretion. As such, it is extremely difficult for the patient to prove that the direct cause of damages is due to medical negligence as an ordinary person who is not an expert, and it is extremely difficult for the patient to prove that the causal relationship between the patient's breach of duty of care in medical practice and the occurrence of damages should be medically perfected. In the event of a medical accident, the patient's act based on the victim's common sense cannot be proven in the course of a series of medical practice and any other cause other than a series of medical practice.

나) 위 법리에 비추어 이 사건에 관하여 살피건대, 위 기초 사실 및 제1심의 ◈◈대학교 세브란스병원장 및 ◐◐◐대학교 서울병원장에 대한 각 진료기록감정촉탁결과에 변론 전체의 취지를 종합하면, 역행성 사정은 전방 경유술의 대표적인 합병증으로 특히 경복막 접근법에서 많이 발생할 수 있는데 피고는 원고 1에 대하여 전방 경유술 중 후복막 도달법으로 이 사건 수술을 시행한 사실은 인정할 수 있다.

On the other hand, in full view of the following circumstances acknowledged by adding the above facts, the evidence as mentioned above, and the evidence Nos. 7 and 8 as well as the purport of the entire pleadings, it is reasonable to view that the circumstance and dynamics, and adaptation disorder (hereinafter “instant disability”) alleged by the plaintiffs were caused by the mistake, such as the damage of Plaintiff 1’s superior principal, sub-principal, and patrine, by failing to fulfill the duty of care required for the defendant to perform the instant surgery, which led to the defendant’s failure to perform the instant surgery.

(1) After receiving the instant surgery from the Defendant, the Plaintiff 1 suffered from the spathical disorder and dynamic conditions due to damage to the superior vice-principal, and the Plaintiff was a young male at the age of 35 at the time of the instant surgery, and there was no spathrosis, such as urology and spathrosis before the instant surgery, and there was no data suggesting that there was no other spathrosis, etc., and there was no evidence suggesting that the appraisal response to the first instance medical record appraisal by the Plaintiff 1 was extremely low possibility that the spathrosis had occurred due to the spathrosis.

(2) Since mid-scale sacral mary divided from the place of abandonment where the ethal ethal ethal ethal ethal ethal ethic ethal ethal ethal ethal ethal ethal ethal ethal ethal ethal ethal ethal ethic ethal ethal ethal ethal ethal ethal ethal ethal ethal ethic ethal ethal ethal ethal ethal ethic ethal ethal ethal ethic ethal ethal ethal ethal ethal ethal ethal ethal ethal ethal eth.

(3) In the process of crypary surgery, gyposis damage may occur to cryp exposure. To prevent such damage, it is recommended that the Defendant used cryp gyp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp syp.

(4) Although the reverse epidemic circumstance is not an issue in the post-explosion test (hereinafter “after-explosion test”), the Defendant implemented the post-explosion test with Plaintiff 1. There is no evidence to acknowledge that it was difficult for the Defendant to perform the post-explosion test due to the operation eption, etc., and otherwise, it is difficult to conclude that there was a need to inevitably select Plaintiff 1, not the post-explosion test. Rather, in light of the fact that Plaintiff 1 recommended the above Plaintiff to perform the post-explosion in April 2013, the instant surgery, it is reasonable to deem that the Defendant was able to perform the post-explosioning surgery with the said Plaintiff, and even if the Defendant’s selection of the post-explosioncing surgery within reasonable discretion, the Defendant may cause damage to the post-explosionary surgery, and thus, even if the post-explosion is within the scope of reasonable discretion, the Defendant may have more prudented risk of the post-exction.

(5) Although there is no evidence to acknowledge that Plaintiff 1’s neurosis was ordinarily distributed, there is no other evidence to acknowledge that there was an abnormal spread of the same, and the Defendant merely asserts that the above Plaintiff’s psychotropic damage and epidemism caused by epidemism was an inevitable merger, but did not specifically assert and prove any inevitable merger occurring during any season.

(6) While reverse dynamics are one of the types of mergers that may arise after the instant surgery, the frequency of occurrence is considerably low to approximately 0.42% in 1984 and approximately 5.9% in 195. In particular, it is difficult to readily conclude that Plaintiff 1’s permanent dynamics disorder are ordinarily occurring in the instant surgery with a merger certificate that can normally occur during the instant surgery, given that there is a high possibility for recovery even for patients who have occurred dynamics after the instant surgery, and that there is a permanent disability only approximately 3 to 5% in terms of the possibility of recovery.

(7) After the instant operation, Plaintiff 1 was diagnosed as having a significant decline in daily life, such as the degradation of memory caused by stress, salutism, complaint satisfaction, desire-free mind, accumulated sense of mind, accumulated decentralization, harmony with the future, fear of concern about the future, and physical symptoms such as physical disorder, etc. The above emotional problem of Plaintiff 1 in the report on the psychological evaluation with respect to Plaintiff 1 is deemed to be highly related to the situation disorder and dynamic situation that occurred after the instant operation. Therefore, it is reasonable to deem that Plaintiff 1’s adaptation disorder was caused by the instant operation.

다) 다만, 위 기초사실에 갑 제19호증의 기재와 제1심의 의료법인 ♡♡♡♡♡ ♡병원장에 대한 신체감정촉탁결과에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정들 즉, 원고 1은 성 관계가 불가능한 것은 아니고 발기부전 증상이 있었으나 호전되고 있는 점, 요도 밖으로 정액이 분출되지 않을 뿐 발기와 사정은 가능한 점, 고환에서 정상적인 정자가 생성되고 있으며 고환에서 정자를 추출하는 등의 방법으로 자녀의 출산이 가능한 점 등을 종합하면, 이 사건 수술로 인하여 원고 1에게 남성불임증, 발기부전 증상이 발생하였다고는 보기 어렵다.

2) Whether the duty to explain was violated

In full view of the purport of evidence No. 1-4 of this case, the medical personnel at Defendant Hospital explained to Plaintiff 1 on the merger certificate, including the instant disability, such as the purpose, method and time of the surgery, anticipated progress after the surgery, and reverse ejaculation, etc. prior to this case, and it can be acknowledged that he obtained the above Plaintiff’s consent from the surgery. According to this, the medical personnel at Defendant Hospital provided with the duty to explain to Plaintiff 1 when conducting the surgery of this case, and the mere fact that the above written consent was printed in the same letter, it cannot be deemed that the operation of this case was conducted without Plaintiff 1’s consent. The Plaintiffs’ assertion of breach of duty to explain is without merit.

B. Limitation of liability for damages

However, as seen above, taking into account the developments leading up to, and details of, the instant surgery, the difficulty and risk of, the instant surgery, the symptoms of Plaintiff 1 and the occurrence of the instant disability, etc., it is reasonable to limit the Defendant’s liability for damages to 70% for the fair and reasonable allocation of damages.

C. Scope of liability for damages

1) Whether Plaintiff 1’s lost income loss was recognized

Plaintiff 1 asserts that the maximum working age of 15% on a permanent basis due to the occurrence of the instant disability such as the disability and the dynamic reason, and that Plaintiff 1 suffered damages equivalent to KRW 115,062,651 on a premise that 22% of the daily income was lost for a limited period of five years due to adaptation disorder.

On the other hand, the labor disability rate shall not be a simple rate of physical disability but be a victim's age, educational degree, nature of the previous occupation, vocational career, skill skill degree, possibility of occupational change to similar occupational categories or other occupational categories, probability of physical disability, and other social and economic conditions. The result of the appraiser's appraisal of the rate of medical physical disability, one of supporting materials for determining the rate of labor disability, is merely a judge's use of special knowledge and experience in finding facts where special knowledge and experience are required, and ultimately, a normative decision is bound in light of the above mentioned victim's legislative condition and experience (see, e.g., Supreme Court Decisions 2003Da6873, Feb. 27, 2004; 2013Da37722, Sept. 13, 2013).

위 법리에 비추어 이 사건에 관하여 살피건대, 위 기초 사실 및 갑 제17호증의 기재와 제1심의 의료법인 ♡♡♡♡♡ ♡병원장에 대한 일부 신체감정촉탁결과에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정들 즉, ① 제1심의 신체감정에 회신한 감정의는 맥브라이드 노동능력상실평가표와 국가배상법시행령 별표 2. 노동능력상실표 중 원고 1의 사정장애 및 역행성 사정에 해당하는 적절한 항목을 찾을 수가 없고, 만약 다른 항목을 준용한다면 맥브라이드 장해평가표 비뇨생식기계의 손상과 질병 항목, Ⅳ(음경), B(성교불능, 발기부전)의 노동능력상실률을 준용할 수 있다는 의견을 제시하였으나, 앞서 본 바에 의하면 원고 1에게 성교불능이나 발기부전이 발생하였다고 보기 어려워 위 맥브라이드 장해평가표를 그대로 적용하기는 어려운 점, ② 비록 이 사건 수술로 원고 1에게 이 사건 장애가 발생하였지만 위 원고는 이 사건 수술 후에도 계속하여 동일한 수준의 급여를 받으며 ▒▒정형외과에서 사무직원으로 근무하고 있는 점(실제 2015년 급여액은 2014년 급여액보다 월 100,000원 상승하였다), ③ 원고 1의 직업은 병원의 사무직이므로 그 업무의 성질상 이 사건 장애로 인해 근무에 지장을 초래한다거나 이직의 가능성에 악영향을 미친다고 단정하기는 어려운 점 등을 종합하면, 갑 제18호증의 기재와 제1심의 의료법인 ♡♡♡♡♡ ♡병원장에 대한 일부 신체감정촉탁결과만으로는 원고 1이 이 사건 장애로 말미암아 그 주장과 같은 노동능력을 상실하였다고 인정하기에 부족하며 달리 이를 인정할 증거가 없다. 원고 1의 이 부분 주장은 이유 없다.

2) Plaintiff 1’s medical expenses: Total of KRW 15,093,996

A) The medical expenses for the Defendant hospital from July 5, 2013 to July 20, 2013: 14,337,800 won (=14,527,800 won - week 7) 190,000 won)

B) From August 1, 2013 to February 25, 2014, 2014: 6,023 won (=42,883 won - 36,860 won)

다) 2013. 9. 13.부터 2014. 3. 26.까지 근로복지공단 ◎◎◎◎병원 진료비 : 0원(= 270,100원 - 303,850원)

라) 2013. 6. 2.부터 2014. 6. 2.까지 ◁◁병원 진료비 : 576,103원(= 892,423원 - 316,320원)

마) 2013. 12. 11.부터 2014. 3. 11.까지 ♤♤♤♤♤♤♤의학과의원 진료비 : 174,070원(= 378,300원 - 204,230원)

[Ground of recognition] Facts without dispute, Gap evidence 12-1 to 5, Gap evidence 13-1 to 6, Gap evidence 14, 15, and 16, fact-finding results to the head of the Si/Gun/Gu regional headquarters at the time of the party deliberation, and the purport of the whole pleadings

3) Limitation on liability

A) The defendant's liability ratio: 70%

B) Calculation: 10,565,797 won (=15,093,996 Won x 70%)

4) Consolation money

A) Reasons for taking into account: The age, family relationship, the background and result of the instant accident, the content and present status of the instant disability caused to Plaintiff 1, and all other circumstances shown in the pleadings of the instant case.

B) Decision amount: Plaintiffs 1 20,000,000, and Plaintiff 25,000,000

5) Sub-decisions

Therefore, with respect to 30,565,797 won (i.e., 10,565,797 won for property damage + 20,000,000 won for consolation money and 25,83,681 won for Plaintiff 1, which are the parts cited in the judgment of the first instance, and 2,000 won for Plaintiff 2, which are the parts cited in the judgment of the first instance, for the existence and scope of the Defendant’s obligation to perform from July 6, 2013, which is the date of the medical accident of this case, to 30,565,797 won for 10,565,797 won for property damage + 20,000 won for consolation money and 20,000 won for consolation money and 25,000 won for delay damages for 20,000 won for 20,000 won for 30,000 won for each of the judgment of the first instance, 205,05,016,005,05,06.

5. Conclusion

Each claim of the plaintiffs in this case is justified within the scope of the above recognition, and the remaining claims shall be dismissed, without merit. Since part of the part against the plaintiffs in the judgment of the court of first instance which differs from this conclusion is unfair, part of the appeal of the plaintiffs shall be accepted, and it shall be revoked, and the payment of the above amount shall be ordered to the defendant additionally recognized in the trial. Since the remaining part of the judgment of the court of first instance is justified, the remaining appeal of the plaintiffs and the appeal against the defendant against the plaintiffs shall be dismissed as it is without merit. It is so decided as per Disposition

Judges Lee Chang-sik (Presiding Judge)

주1) 피고 병원 간호기록지(을 제1호증의 7)에는 ‘☆병원’이라고만 기재되어 있으나, 뒤에서 보는 바와 같이 원고 1이 이 사건 수술 후인 2015년 12월경 인천 남동구 (주소 생략) 소재 ☆☆☆☆병원에 내원한 사실에 비추어 같은 병원으로 보인다.

Note 2) If the ruling of recommending reconciliation (Evidence A No. 20) 2, see “the reasons for the ruling”.

Note 3) SPla Pa 1976. 1984 Jul-Aug.9(5) :489-92, Sexerior Organization JnC, Price CT.

Note 4) Eur Spine J. 195.4(6) :39-42; Regulatory eja or interropic lumbagos, Tiusen H, Seitalo S, Oly agreed K, Soini J.

5) On the other hand, the instant lawsuit was filed on June 12, 2014, while the warden of the lawsuit for confirmation of non-existence of the prior lawsuit was served on Plaintiff 1 only after July 2, 2014, and thus, it cannot be deemed that Plaintiff 1 filed the instant lawsuit in order to respond to the lawsuit for confirmation of non-existence of the prior lawsuit.

(6) On July 30, 2012, the Defendant: (a) obtained the approval of an industrial accident for the escape certificate of the 4-5 conical signboard that occurred while serving on July 30, 2012; and (b) on January 29, 2014, with the approval of the respective industrial accidents on adaptation disorders on March 11, 2014; and (c) on March 11, 2014, with the approval of the respective industrial accidents from the Korea Workers' Compensation and Welfare Service, the amount equivalent to the insurance benefits should be deducted from the amount of the damages in this case; (d) the amount of the insurance benefits paid to the Plaintiff cannot be clearly distinguished from the amount of the insurance benefits paid to the Plaintiff; (e) the amount of the insurance benefits paid to the Plaintiff cannot be viewed as having been deducted from the amount of the insurance benefits paid to the Plaintiff’s Compensation and Welfare Service; and (e) the Defendant’s assertion to the purport that the Plaintiff’s damages exist in this case should no longer be deemed to exist.

Note 7) Medical care benefits received from Korea Workers’ Compensation and Welfare Service. It shall be deducted from the king medical care costs for each hospital.