207Gaz.7798 Insurance proceeds

A

B

October 22, 2008

December 10, 2008

1. The defendant shall pay to the plaintiff 40 million won with 5% interest per annum from July 30, 2005 to August 13, 2007 and 20% interest per annum from August 14, 2007 to the date of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

【In the absence of any dispute, Gap 1-5, 8, 9 (including each number), Eul 1-4, and the purport of the whole pleadings

A. Circumstances, etc. of the instant medical accident

(1) At the time of July 28, 2005, C, the Plaintiff’s mother and legal representative, followed the Plaintiff at the age of 2 years and 9 years of age, and the Plaintiff’s medical specialist D, “E-type medical clinic “to visit the Plaintiff and conduct a general anesthesia surgery immediately from the foregoing D, which diagnosed the Plaintiff,” entered into a medical contract with D on July 29, 2005 with respect to the e-type medical clinic surgery (hereinafter “the instant surgery”).

(2) However, on July 30, 2005, the Plaintiff was scheduled to conduct the instant surgery twice, and C notified the instant fact to D prior to the commencement of the surgery on the same day, and D determined that the instant surgery does not interfere with water alcohol, and immediately initiate the instant surgery without a thorough observation or examination on the Plaintiff’s health condition, and ordered F medical specialists working in the “Etype Foreign Medical Center” to conduct an overall anesthesia of the Plaintiff.

(3) On the other hand, even though the F, immediately before the instant operation, told the Plaintiff to have invaded two times from C, the F had only reported that there was no possibility that the Plaintiff’s health condition does not interfere with general anesthesia, and immediately conducted a general anesthesia with the Plaintiff without any additional examination, without any other additional examination, immediately conducted a general anesthesia via an engine insertion against the Plaintiff. Of the said telegraphic anesthesia, the Plaintiff was only a person who caused a pulmonary disorder caused by the breathic disorder caused by the breathic disorder, and did not take any particular measures to remove the breathic disorder.

(4) Ultimately, the Plaintiff suffered from pulmonary pulmonary brain injury caused by an organ disorder caused by the said general anesthesia, and as a result, a special case was made before the said general anesthesia procedure.

The instant accident occurred to the Plaintiff who did not have any defect in the health of Korea, which caused the occurrence of the instant accident, such as the paralysis, the loss of both sides of the luxa, the fall of the luxa, and the fall of the recognition function.

(5) In general, since a patient suffering from a sense of anesthesia is more likely to cause an anesthesia than normal conditions, it is known that there is a symptoms to the patient during the surgery, and in addition, in light of the Plaintiff’s symptoms of the circulation system of general anesthesia, there is a high possibility of pulmonary treatment due to a sudden pulmonary machine disorder without prior to the symptoms of the circulative system, and as such, in a case where there is a suspicion of pulmonary disorder due to a pulmonary disorder due to a pulmonary disorder in the general anesthesia, it is necessary to take measures to increase the concentration of inhaled oxygen concentration as a food and to deepen the anesthesia concentration by raising the concentration of inhaled oxygen concentration, and in addition, it is necessary to take measures to cut pulmonary treatment into an organ.

B. The conclusion of the insurance contract and the conclusion of the agreement between the non-regular, general, and general, and the Korean anesthesia & Medical Institute Council entered into each of the medical doctors and hospital liability insurance contracts listed in the separate list with the Defendant as insured by D and F (hereinafter referred to as the "insurance contract", and the "each of the insurance contracts in this case in total"), and the major contents of the agreement applicable to each of the insurance contracts in this case are as follows.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

2. Determination:

(a) Occurrence of and restrictions on liability for damages;

(1) Generally, a doctor dealing with a human life and health requires a duty of care to take the best measures necessary to prevent hazards that may arise from a medical procedure in light of the nature of his/her duties. In particular, a general anesthesia has a significant impact on the patient’s mid-to-life boundary, respiratory machine or circular machine, etc., and may cause serious side effects on the patient’s health condition, such as the patient’s death, etc.; thus, a doctor in charge of the medical procedure must observe the patient’s body structure or condition closely in preparation for all risks that may arise from the whole process of anesthesia prior to the anesthesia, and a doctor in charge of the medical procedure requires a duty of care to sufficiently compare the parts and side effects of the anesthesia with each other and select the most appropriate and safe method for the patient (see, e.g., Supreme Court Decision 9Da4821, Mar. 23, 2001).

(2) However, in light of the above facts, the Plaintiff showed symptoms such as conducting an emergency operation twice on the date of the instant operation, and as long as C, a guardian of the Plaintiff, should have notified this fact to D and F prior to the instant veterinary operation, there is sufficient reason to suspect that the Plaintiff may cause the Plaintiff’s infection during the instant operation due to symptoms, etc., and that the patient suffering from the reduction of anesthesia is more likely to cause the Plaintiff’s infection during the instant operation, and that there was no evidence to view that the instant operation was an emergency operation requiring prompt and prompt anesthesia, and that it was not an institution’s duty of care to observe the Plaintiff’s health condition and prevent any further anesthesia in light of the following factors: (a) the Plaintiff’s health risks arising out of the instant surgery, which could have been caused by an extended concentration of anesthesia during the instant operation, and (b) the Plaintiff’s actual anesthesia, which was in charge of the instant operation, could not interfere with the Plaintiff’s health condition through a thorough examination or treatment.

(3) Therefore, in the instant case where the Defendant failed to prove that there was no health defect that could be the cause of the aftermath disability due to the instant accident before the instant surgery, and that the scambling of an engine that caused such aftermath disability was due to any other cause that could not have been entirely anticipated, such as the Plaintiff’s peculiar transfer, etc., the causal relationship between D and F’s medical negligence during the instant surgery and the Plaintiff’s above aftermath disability is presumed (see, e.g., Supreme Court Decision 9Da4821, Mar. 23, 2001). As such, the Defendant, as the insurer of D and F, is liable for all damages suffered by the Plaintiff due to the instant accident within the total coverage of 40 million won (= insurance contract 1.2 billion won + insurance contract 200 million won) as stipulated in each of the instant insurance contracts and the terms and conditions thereof.

[Y] Even if D’s direct medical malpractice, which is a house physician in the process of the instant surgery, is not acknowledged, as seen above, C, as its mother and legal representative, entered into a medical contract for the entire process of the instant surgery, including general anesthesia with the above D. Thus, D is responsible for managing and supervising all the process of the instant surgery in relation to the Plaintiff, who is a patient, and D, caused F to take charge of anesthesia at one’s own hospital’s own responsibility, but it is merely a part of F to take part in the instant veterinary act under its own responsibility. Thus, in applying each insurance contract of this case at least in accordance with D’s instruction and supervision as the presiding agent of the instant surgery, it is reasonable to view that D’s medical malpractice is in the position to assist D’s medical act in accordance with D’s instruction and supervision (the “special terms and conditions for ice and anesthesia’s insurance” incorporated as part of the insurance contract, and thus, D’s insurance contract as a person who acquired the qualification of the insured under the name insured or named insured’s insurance contract of this case constitutes an insured’s medical practice of this case.

(4) Judgment on the defendant's assertion

In regard to this, the defendant argued to the effect that the plaintiff is unable to file a claim for damages against the defendant, who is the insurer of D and F, because the plaintiff received KRW 100 million from D and F, and agreed to waive all of the claims against D and F in the future, regardless of all civil and criminal liabilities against D and F. However, unless there is any evidence to acknowledge that the plaintiff renounced a direct claim against the defendant, the defendant's above assertion is without merit.

(5) Limitation of liability

However, since the possibility of the Plaintiff’s minor organ donation and other unexploded physical organ’s influence on the instant accident cannot be ruled out completely, the Plaintiff’s liability ratio under the principle of equity shall be 20%, and the ratio of D and F’s liability shall be limited to 80% remaining.

(b) Scope of damages;

With the exception of those specifically indicated below, each of the relevant items in the separate sheet of calculation of damages and the table of calculation of opening expenses shall be the same as each relevant item, and less than a month for the convenience of calculation shall be included in the side in which the appraised amount is less than the last month, and the amount less than the last month and less than the original amount shall be discarded, respectively, and the current price calculation at the time of the accident related to the amount of damages caused by the accident in this case shall be governed by the simple interest discount method

【In the absence of any dispute, each of the facts allegedly in this court, the empirical rule, Gap 1-3, 6-10 evidence (including each number), and the purport of the whole pleadings

(a) Actual income: 212,297,331 won;

(a)financial assessment of operating capacity;

(1) The operation period and the number of working days of an urban ordinary wage: The 22th day of each month from October 21, 2024 to October 20, 2062 from October 20, 202, when the Plaintiff completed military service, and the latter disability and the labor capacity loss rate (the rate of disability shall be applied to the Mabrod disability assessment table).

(1) Loss of full eyesight of both banks: 85% permanently.

(2) Degrasing the recognition function due to brain damage, spathy, etc.: 56 percent permanently (applicable to two parts of the evaluation table on brain-cerebr-cerebral cerebr-B-3).

(3) Combined loss rate: 93.4% permanently.

(b) Nursing expenses: 458,813,765 won;

(A) Period for opening: From October 21, 2005 to January 15, 205, the date on which the plaintiff reaches three years of age;

① As a result of the instant accident, the Plaintiff suffered from brain damage and caused serious disturbance, such as the loss of lusence on both sides, the maintenance of lusence, gymnasium, and the fall in recognition function, the Plaintiff’s opening of 12 hours by one adult per day for the daily daily life of gathering food from the date of the instant accident to the end of the life of the life of the Plaintiff: Provided, That even for healthy infants, the Plaintiff’s opening of lusium damage is in need of assistance, such as parents, etc., until they grow up, and it is ordinarily possible to move independently to a considerable extent, by taking account of the following: (a) the Plaintiff’s opening of lusium damage is recognized as only the part after the date of the instant accident, which is 3 years of age, including the Plaintiff’s eating, eating, and wearing clothes.

On the other hand, the Plaintiff’s life expectancy was reduced by 73,57 years from the date of the instant accident, or by 30% from the date of the instant accident, if it is deemed that the Plaintiff’s life expectancy reduced by 51.49 (i.e., 73.57 x 70%) and the subsequent life expectancy end on January 15, 2057. In this case, the Plaintiff’s life expectancy was reduced by 73,57 from the date of the instant accident: Urban daily wage.

(3) The plaintiff's liability ratio: 20% or the property damages after the limitation of liability: 487,047,624 won

(1) On-going income: 169,837,864 won [=212,297,331 won X (1-20%) (2): 317,209,760 won [in the case of opening expenses, the amount of damage on property after the limitation of liability may be 367,051,012 won [ = 458,813,765 won X (1-20%) but the deduction for profit and loss shall be made by the plaintiff]; 4.

A) Compensation for damages paid from D and F: 100 million won, the defendant asserts that in addition to the above 100 million won, D and F should also deduct the part corresponding to the plaintiff's liability ratio among the medical expenses already paid or to be paid in the future. However, the defendant's assertion is not accepted since D and F have no evidence to acknowledge that they have paid the plaintiff the expenses for early treatment or future treatment in addition to the above 100 million won. However, the deduction under the provision of self-payment in this case: five million won for each insurance contract: 1 and 2, five million won for each insurance contract, and 10 million won for total, the victim's direct claim for the insurance money against the insurer can be exercised within the limit of the insurance amount. The provision of self-payment in this case provides that the amount of damages shall be compensated for the excess amount only if the amount of damages exceeds the self-payment stipulated in the insurance policy. Accordingly, each of the "liability security for medical negligence" in each insurance contract in this case shall be deducted from the amount of damages.

(C) The amount of damages for property after the deduction for profit and loss: 377,047,624 won (=487,047,624 won - 100 million won - 100 million won)

(5) Consolation money: Taking into account all circumstances, such as the Plaintiff’s age, family relationship, details and result of the accident, ratio of liability, etc.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 437,047,624 won ( = property damages amounting to 377,047,624 won + consolation money 60 million won) of the total amount of damages amounting to 400 million won under each insurance contract of this case in accordance with each insurance contract of this case, and as to this, 5% per annum under the Civil Act from July 30, 2005, the date of the accident of this case to August 13, 2007, which is obvious in the record that it is the delivery date of a copy of the complaint of this case, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from August 14, 2007 to the date of full payment. Thus, the plaintiff's claim of this case of this case is justified.

The assistant judge of the presiding judge;

Judges Kim Jae-sung

Judges Yoon Nam-nam