2011Na4216 Compensation (Definition)

A

Law Firm Maduk, Counsel for the plaintiff-appellant

[Defendant-Appellant]

B

Attorney So Young-young et al., Counsel for the defendant

Ulsan District Court Decision 2010Da36505 Decided June 22, 2011

January 24, 2013

February 21, 2013

1. The part of the judgment of the court of first instance against the Plaintiff corresponding to the money ordered to be paid below shall be revoked. The Defendant shall pay to the Plaintiff 41,295,667 won with 5% interest per annum from May 22, 2008 to February 21, 2013, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. The portion of the payment of the money under paragraph 1 above may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 82,810,322 won with 5% interest per annum from May 19, 2008 to the date of this judgment, and 20% interest per annum from the next day to the date of full payment.

1. Basic facts

A. The defendant is a dentist operating 'C clinic', and the plaintiff is a person who received dental treatment from the defendant from September 16, 200 to April 17, 2009, such as cateral and dental infection.

B. The Plaintiff received treatment from the Defendant on two occasions in 2001, three occasions in 2003, one time in 2004, and one time in 2004, and thereafter received treatment from August 2007 to May 2008.

C. Around October 23, 2001, the Defendant rendered treatment to Daegu Daegu High Court of Daegu, the Plaintiff’s left-hand side-hand side-hand side-hand side-hand side-hand on July 2, 2003 as to Daegu High Court of Daegu, the left-hand side-hand side-hand side from August 24, 2007 to September 12, 2007, and around February 18, 2008 as to the first Daegu High-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side-hand side (such as water control, temporary shock, cocoop, extension of neighboring pipes, washing, hump-gu

D. From March 6, 2008 to March 26, 2008, the Defendant provided treatment, such as water control, extension of root, cleaning, etc. after anesthesia with respect to Daegu Daegu 1, the Plaintiff’s right-hand, and provided treatment for repair, cleaning, etc. for the 2 Daegu 2, Daegu 2, and 1 Daegu 2, the right-hand, from April 3, 2008 to April 29, 2008. Then, on May 1, 2008, the Defendant deleted the Plaintiff’s 1, Daegu 1, the Plaintiff’s right-hand, and provided treatment for the 1st Daegu 1, Daegu 1, the right-hand, with the lucking 1,55.

E. On May 21, 2008, the plaintiff filed an appeal for symptoms because the sum of the first Daegu and the upper jun on the right-hand side of the Boan-do, the defendant filed an appeal for its symptoms. On May 21, 2008, the defendant filed an appeal for removal of eight jun on the left-hand side of the plaintiff's counterclaim.

F. On May 22, 2008, the following day, the Plaintiff still did not fit the total of dental services, and as a result of the preceding procedure, the Plaintiff complained of sufferings, such as contact with the lower her mouth, the Defendant additionally performed removal procedures for eight (8) her centering on the Plaintiff’s above and the lower her.

G. The Plaintiff received 16 dental services from the Defendant over two occasions (hereinafter referred to as the “instant deletion services”) and sent symptoms, such as the symptoms of the misappropriation agreement and sheshesheshesheshes both home and home, and the symptoms, such as the pains, brushes, and brushes (hereinafter referred to as the “related symptoms”).

H. The Plaintiff complained of the instant evidence and received the following treatment from the Defendant from May 24, 2008 to June 20, 208.

(1) On May 24, 2008, the Defendant complained of pains such as the Plaintiff’s interference disorder even after the treatment, and performed the procedure to have the Plaintiff cut off by putting the Plaintiff’s room in the speed after cutting the knife under the knife of the said Plaintiff’s knife.

(2) On May 26, 2008, the Defendant complained of pains, such as that the Plaintiff had a disability even after the treatment. On the other hand, the Defendant removed the iron installed in the 1st Daegu of the right lower class, put the steel in ging, and then put the plant into the plant of the 1st Daegu value on the right side.

(3) On May 28, 2008 and June 1, 2008, the Defendant conducted a procedure to replace the plant with the plant species put in as above.

(4) On June 5, 2008, the Defendant, on the part of the Plaintiff’s right-hand 1 Daegu, performed the procedure of cocopicization, removal of cryp, production of cryp paper, etc.

(5) On June 11, 2008, the Defendant carried out a procedure to temporarily store the steel products to the 1st Daegu value on the right-hand side of the Plaintiff.

(6) On June 15, 2008, the Defendant performed the procedure of cohesion conciliation, etc. with respect to Daegu Daegu, the right-hand side of the Plaintiff.

I. From June 25, 2008 to July 22, 2008, the Defendant: (a) with respect to 2nd dental care in the Plaintiff’s right upper part; (b) with respect to anesthesia; (c) with respect to anesthesia; and (d) with respect to 1st dental care in the first part, anesthesia; (d) with respect to anesthesia; (e) with respect to anesthesia; (e) with respect to anesthesia; (e) with respect to

(j) From March 11, 2009 to April 17, 2009, the Plaintiff’s 2nd head of the upper right is gold and shouldered, and received treatment from the Defendant, such as cocoin, water control, water emission, root expansion, root washing, temporary charging, typ charging, arching, arching, arching, deletion, and refrating.

(k) Nevertheless, the pertinent evidence was not improved, and the Plaintiff was diagnosed on April 8, 2009 at the Busan National University Hospital Hospital Hospital. On June 23, 2009, the Plaintiff was diagnosed on the part of both sides of the chratum chill, including the chatum batum bats of both sides, and the batum batum bats of both sides, and the batum batum bats of both sides of the school (hereinafter “instant disability”).

E. The Plaintiff received treatment from the Busan National University Hospital Hospital to the Gu lecture, and was administered to manufacture and wear a system for stabilizing the bridge in the Gu lecture, and thereafter, the Plaintiff manufactured and worn 15 teaching ties at the fence department, D dental clinic, etc., depending on the state of modification, etc. of the infant.

(n) Relevant medical knowledge;

(1) The general treatment process of impulse treatment is crypted with cryp treatment (a strud part of the cryp treatment with a cryp and death of the path) and cryp treatment, treatment of cryp (a treatment with a cryped part of the cryped part of the cryp), extension of the cryp (a treatment with a wide area of the cryp of the cryp) after about 3 days, and the plant cryp of the cryp of the cryp (at intervals of 2-3 days) and production of cryp or cryp of the cryp (a cryping part of the cryp and the cryp of the cryp part of the cryp part of the cryp in order to stick up the cryp part of the cryp), recharged part of the cryping part of the cryp.

(2) 악관절의 구성악관절은 이중관절, 내압박성 관절, 양측관절의 독립성, 가동성 관절과두 등 4개의 특징을 가지고 있고, ① 측두골(고실부의 앞쪽에 위치), ② 하악골 과두(대체로 팽륭된 장방형 또는 반구형인데, 전후방으로 10㎜, 내외방으로 20㎜ 정도의 크기를 가졌으며, 내상방은 두터운 섬유결체조직으로 피복되어 있고, 내면 하부에는 익상근와가 위치하여, 이곳은 외익상근이 정지하는 곳임), ③ 관절원판(섬유성의 평활한 조직으로 되어 있으며, 내측 그리고 외측으로 짧은 인대가 부착되어 있어 투구모양을 이루고 있음), ④ 인대(악관절 구성에 관여되는 직접 관여되는 인대는 원판인대, 관절낭인대, 측두하 악인대이고, 측두하악인대는 과두와 측두골의 협골 사이에 연결되는 인대로 내측의 수평인대는 관절원판의 뒤쪽 변연에도 부착되어 있어 전방 이동을 돕고, 외측의 사선인대는 과도한 하악골의 하방이동과 개구를 제한시키며, 이는 과두와 관절원판 사이에서의 회전운동을 가능케 하는 역할을 한다.), ⑤ 저작근(악관절 기능장애 또는 안면 근육통 등과 가장 긴밀하게 관계됨) 등으로 구성되어 있다.

(3) The symptoms and causes disorder of the malicious disorder show the mouth, salute, hair, salute, salute, especially the pains, and displeasure in the part of the malicious salute, which are caused continuously or repeatedly, and the displeasure, related to the movement of the heak salute, displeassive disorder, salute, opening disorder, and salute, which are caused by the flaute inception in connection with the movement of the heak salute.

Such a malicious disorder may be combined with at least one cause, if there is any defect in the physical and mental health status, such as ① at least the partnership relationship, ② the control, commuting, abnormal recommendation, ③ the physical and mental health status.

[Ground of Recognition] Facts without dispute, Gap 1 through 3, 15, 19, 21 through 25, 30, and Eul 2, each of the images of Gap 18, 20 evidence (including additional number), and the purport of the whole pleadings;

A. The plaintiff's assertion

The Defendant did not explain to the Plaintiff any explanation that the Plaintiff could cause an impediment to the Plaintiff by doing the instant deletion procedure, including the Plaintiff’s appeal of the relevant symptoms, while treating the defects that the sum of the 1st and upper parts of the 1st and upper parts of the 16th and upper parts of the 16th and lower parts of the left side in the process of treating the defects that the Plaintiff did not properly match. In addition, even though the Plaintiff complained of the instant evidence after the deletion procedure, the Defendant did not provide appropriate treatment, and accordingly, the Plaintiff did not provide appropriate opportunity for treatment, thereby causing the Plaintiff’s injury. Accordingly, the Defendant is liable to compensate the Plaintiff for damages incurred by the Plaintiff due to the said negligence.

B. Determination

1) Existence of negligence and existence of proximate causal relation

(1) In order to be held liable for tort due to breach of the duty of care or non-performance of the duty of care for medical practice, the existence of causation between the violation of the duty of care and the occurrence of damages should be premised on the existence of medical practice. However, the process of medical practice requires highly specialized knowledge. In the case of a large number of patients, only a doctor can be aware, as well as part of the patient himself/herself can be known. Since the medical method to achieve the result of medical treatment depends on the doctor’s discretion, it is difficult to clearly prove that the direct cause of damages occurred due to medical negligence is an ordinary person who is not an expert, and it is extremely difficult to prove that the causal relationship between the patient’s breach of the duty of care and the occurrence of damages is medically perfect, and it is extremely difficult for the victim to prove that the patient’s act of negligence based on the common sense at the victim’s stage of medical treatment and that there is no other cause than a series of medical practice, and that there is no other burden than a series of damages arising from 90-197 medical practice.

(2) As a result of the examination of the above facts by the court of first instance on the body of the Busan University, the defendant tried to find out the remaining reasons for the removal of the vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegeical vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegetable vegeical vegetable vegeical vegetable vegetable vegeical vegeical vegetable.

(3) In addition, the Plaintiff did not receive all the treatment of the instant disability or relevant symptoms before undergoing the crypty treatment, and there was no appeal for the pertinent symptoms even after being treated at the dental clinic operated by the Defendant for a long time, and even if the result of physical examination of the Busan University Hospital was entrusted, the possibility that the Plaintiff’s disability or relevant symptoms might occur due to the cryptying or the crypting, etc., is low. In full view of the above circumstances, it is reasonable to view that the Defendant’s negligence caused the Plaintiff’s misappropriation and the cryptying disorder, etc.

2) Limitation on liability

In full view of the facts acknowledged earlier and the purport of the entire pleadings, the Defendant caused the instability of school agreement to the Plaintiff through the instant deletion procedure, and thereby caused the occurrence of evidence related to the instant disability. However, as seen earlier, the instant disability may arise due to a single cause or a combination of various causes, as seen earlier, and the Plaintiff is aged and has been engaged in the repair business for a long time, and thus, it seems that such occupational and age characteristics were the cause of the instant disability. Therefore, considering the aforementioned circumstances in calculating the amount of damages that the Defendant is liable for, it would accord with the ideology of the damage system that provides guidance on the equitable and reasonable apportionment of damages. Therefore, the Defendant’s liability should be limited to 60% of the total amount of damages.

3. Scope of liability for damages

(a) Actual income:

On the basis of the facts of recognition and evaluation as follows 1), the loss from lost profits due to the removal of this case shall be calculated at the present price at the time of the removal of this case (the period shall be calculated on a monthly basis, and the amount of less than a month and less than a won shall be discarded) according to the method of simple interest calculated at the rate of 5/12 per month as follows 2).

(i) the facts of recognition and evaluation;

A) Gender: ** Date of birth****.*.*. Living age: at May 22, 2008 ***** month*

Name of term of lease:**.* year

B) Monetary assessment of operating capacity: 67,909 won per day of May 22, 2008 sought by the Plaintiff, as of May 22, 2008.

C) Ratio of loss of labor capacity

Permanent disability of 30% by applying mutatis mutandis the 10th class 2 of attached Table 2 of the Enforcement Decree of the State Compensation Act (a person who has a disability in the function of Chewing or language).

[Grounds for recognition] The result of the court's commission of physical examination to Busan University Hospital and the purport of the entire argument

2) Calculation: 33,868,366 won 67,909 won ¡¿ 22 days ¡¿ 75.54 x 30% = 33,868,366 won

(b) Expenses for medical treatment: 18,291,080 won in total, including medical expenses, etc. incurred by the plaintiff;

[Reasons for Recognition] Gap 6 to 9, 12 to 14 (including paper numbers) shall be written respectively. Limitation of liability

1) The defendant's liability ratio: 60%

2) Calculation: 31,295,667 won [3,868,366 won + (33,868,366 won + 18,291,080 won] 60%) (d) consolation money.

1) Reasons for taking into account: The Plaintiff’s age, gender, the process and result of the deletion of this case, and all other circumstances shown in the pleadings of this case, as follows: the Plaintiff entails severe pains due to the instant disability, and the remaining obstacles to the function of Chewing and language, and the Plaintiff’s continuous treatment in the future.

(ii) Amount recognized: 10,000,000 won;

E. Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff 41,295,667 won and damages for delay calculated at each rate of 5% per annum under the Civil Act from May 22, 2008, which is the date of the completion of the instant deletion procedure, to February 21, 2013, which is the date of the instant judgment, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable within the above scope of recognition, and the remaining claims are dismissed for lack of grounds. Since the judgment of the court of first instance is unfair with a different conclusion, the part against the plaintiff corresponding to the above money in the judgment of the court of first instance is revoked, the defendant is ordered to pay the above money, and the plaintiff's remaining appeal is dismissed for lack of grounds.

The presiding judge and judge of interest-gu

Judges Cho Sung-hee

Benefits of Judges;

1) Results of commissioning physical examination of Busan National University Hospital

2) The results of inquiry into the D dental clinic

3) The results of inquiry into the president of the Korean Dental Association

4) The results of inquiry into the president of the Korean Dental Association

5) At the time of locating the opposite upper part of the 1st Daegu District, the upper part of which is the upper part of the 1st Daegu District, the lower part of which is the right-hand, and also showing the upper part of which is the lower part of the lower part.

It seems that the height of the first Daegu value of the right-hand 1st while being covered with the steel was lower than that of other fluences.