[1] Whether a nurse is obligated to follow a medical doctor’s instructions when a nurse assists in medical treatment (affirmative in principle)

[2] The case holding that, in a case where a nurse Gap and Eul did not follow the direction of the doctor in charge to measure the active symptoms 4 times at intervals of one hour while assisting the patient immediately after the surgery for the nurse Gap and Eul, and the above patient died from excessive transfusion, the case holding that Gap and Eul had occupational negligence

[1] Article 2 of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007) provides that a doctor is engaged in medical treatment, and a nurse is engaged in nursing or assisting in medical treatment. Thus, if a nurse assists in medical treatment, barring any special circumstance, he/she is obligated to assist in medical treatment according to the medical doctor’s instruction.

[2] The case holding that the judgment below erred in the misapprehension of legal principles or in the misapprehension of legal principles as to the medical doctor Gap's duty to conduct a measurement of 20 times after considering that the nurse Gap working in the general sick room did not need to do so at least 4 times at intervals of one hour for the patient immediately after the divers removal operation, and that the nurse Gap did not perform a medical examination at least 3 hours after 10 minutes after 20 times during 3 times during 4 times during 10 minutes after 10 minutes after 20 hours after 20 times during 3 times after 20 days after 3 times during 4 times during 20 days after 200 after 2000 after 3 times after 2000 after 200.

[1] Article 2 of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007) / [2] Articles 17, 30, and 268 of the Criminal Act; Article 2 of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007)

[2] Supreme Court Decision 93Do3030 delivered on December 22, 1994 (Gong1995Sang, 725) Supreme Court Decision 2005Do8980 Delivered on December 24, 2009

Defendant 1 and one other

Prosecutor

Attorney Shin-ho et al.

Seoul Central District Court Decision 2007No1686 Decided September 3, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. A doctor in charge of human life and health requires the best duty of care necessary for the prevention of danger in light of his/her nature of work. Accordingly, a doctor must give due care to the patient’s condition and take into account all circumstances, including the effect and side effects of treatment methods based on the medical knowledge at the time of treatment. The standard of such duty of care shall be determined according to the medical level by practice of so-called clinical medicine at the time of treatment, but the medical level shall be determined to the level that is normatively required, and shall not be considered according to the specific situation of the relevant doctor or medical institution (see Supreme Court Decision 96Da5933, Feb. 11, 1997, etc.).

Meanwhile, Article 2 of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007) provides that a medical doctor is engaged in medical treatment, and a nurse is engaged in nursing or assisting in medical treatment. Therefore, if a nurse assists in medical treatment, he/she is obligated to assist in medical treatment according to the medical doctor’s instruction, barring any special circumstance.

2. A. According to the reasoning of the lower judgment and the evidence duly admitted and examined the victim’s 1’s 0th century, the victim was found to have been at least 3 p.m. at the time of the 2nd surgery, and the victim was at least 1 p.m. at 0 p.m. at 1 p.m., the victim’s 1 p.m. at 0 p.m., the victim’s 1 p.m. at 0 p.m. and the victim’s 1 p.m. at 0 p.m., the victim’s 1 p.m. at 0 p.m., the victim’s 1 p.m. at 0 p.m. and the victim’s 1 p.m. at 0 p.m., the victim’s 1 p.m. at 0 p.m. and the victim’s 1 p.m. at 1 p.m. at 0 p.m., the victim’s 1 p.m.

B. On the contrary, the above order of the physician to take four times at intervals of one hour after the stability of the vitality was also applied to the general hospital, and was explicitly delivered to the Defendant, who is the nurse of the general hospital. In the early stage of the blood transfusion, given that the clinical observation of the patient’s clinical symptoms cannot substitute the active test due to the patient’s clinical observation, it cannot be deemed that the above order was erroneous, and there is sufficient possibility that the Defendants would not have died after receiving treatment, such as blood transfusion and surgery, by early detection of the blood transfusion if they measured the active test at intervals of one hour.

In this regard, even if ○ University Hospital used by the Defendants in the guidelines (Evidence No. 305 pages of evidence records) for the outside and the nurses employed by the Defendants, the above contents are about the distance of 4 hours after the surgery, and it is not about the distance measured in the stable process, but about the distance measured after the surgery. In this case, the head of the nursing department of the ○○ University Hospital has expressed his view that the above work guidelines cannot be seen as prior to the instruction of the doctor. Thus, it cannot be viewed as clinical practice to measure the active symptoms at an interval of 4 hours even before the full stability of the active efficacy. Moreover, it cannot be viewed as the level of medical care by the practice of clinical medicine.

Therefore, even though Defendant 1 has a duty to measure the activeness at intervals of one hour for the victims listed in the general sick room, Defendant 1 should be deemed to have occupational negligence not measured the activeness after around 22:30, which is the third time measuring time for the activeness test. Furthermore, Defendant 2 also has an occupational negligence not measured the activeness even from the time of the fourth measurement until 23:30, which is the time of the fourth measurement. In addition, in the event that an urgent measure, such as the activeness test, is not performed during one hour, even though the first obligation to perform the order was the first obligation to observe the victim at intervals of 23:00, the victim did not observe the activeness and did not measure the activeness, and even from the time of the fourth measurement, Defendant 2 should be deemed to have an occupational negligence not measured the activeness.

C. Nevertheless, on the grounds that it is difficult to conclude that the Defendants were occupationally engaged in, or causation between the Defendants’ failure to perform the active measurement and the death of the victim solely on the grounds that the Defendants failed to measure the activeness of the victims at intervals of one hour and the victims died thereafter, the lower court’s judgment that found the Defendants not guilty of the instant facts charged was erroneous by misapprehending the legal doctrine on the duty of care and proximate causal relation required for nurses, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Si-hwan (Presiding Justice)