2015Do8165 Injury by occupational negligence

A

Defendant

Law Firm B

Attorney C

Seoul Western District Court Decision 2014No1693 Decided May 14, 2015

December 10, 2015

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which found the defendant guilty of the charge of this case on the ground that there is a proximate causal relation between the defendant's violation of the duty to explain and not specifically explain the contents of post-treatment, post-operation treatment before the instant surgery and the injury suffered by the victim. On the other hand, the defendant did not confirm whether there was a drug or drug at the time of the surgery, and whether there was a sensitive response to the drug or drug, etc. at the time of the surgery, and there was a proximate causal relation between the occupational negligence and the injury suffered by the victim after the surgery of this case.

2. However, it is difficult to accept the above judgment of the court below for the following reasons.

A. In order to determine the existence of negligence in a medical accident, it is recognized that a doctor could have predicted or avoided the occurrence of the outcome, even though he/she could have predicted or avoided it. Determination of the existence of negligence should be based on the degree of general attention of ordinary workers engaged in the same work and occupation, and should take into account the level of medical science at the time of the accident, the medical environment and conditions, the specificity of medical practice, etc. (see, e.g., Supreme Court Decision 2001Do3292, Jan. 10, 2003).

In addition, the facts charged in a criminal trial should be proven by the prosecutor, and the judge should be found guilty with evidence of probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, it should be determined with the benefit of the defendant.

B. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts and circumstances.

(1) The Defendant also acknowledged the fact that it did not verify whether the victim took the instant surgery, whether the victim was able to take the surgery, and whether the victim was able to respond to any specific drug. However, on September 27, 2011, before the instant surgery, the victim had already been recovered without any particular circumstance after undergoing a pair of surgery from the Defendant on September 27, 201, and the instant surgery was conducted five months after the surgery, and there was no material that there was a significant change in the victim’s health condition.

(2) According to the medical records submitted by the Defendant, the victim was given medical treatment from around 2006 to the Defendant due to the symptoms of the outbreak of blood circulation disorder, etc. In addition, the investigative agency and the first instance court stated in the investigative agency that the victim was under medical treatment prior to the instant surgery and was in the state of taking high blood pressure before the instant surgery. However, there are no other data to acknowledge whether the victim was under any specific kind of high blood pressure drugs prior to the instant surgery, especially whether the victim was under any specific provision of high blood pressure.

(3) The instant surgery received by the victim is not a surgery that has a large number of blood transfusions during the process of the surgery, as a result of a regional removal of the nives of both sides. According to the fact-finding conducted by the first instance court on the Korean Medical Association, the occurrence of blood transfusions after the nives of the nives of the nives of the nives of the nives of the nives of the nives of the lives of the lives of the lives of the lives of the lives of the lives of the

(4) Although there was a circumstance that the Defendant’s surgery was conducted in the course of the surgery against the victim because the part of the surgery was not superior to ordinary persons, and thus, the surgery was completed by blood transfusion, it cannot be readily concluded that the blood or the part of the surgery that occurred in the part of the victim’s surgery and that the blood or the part of the surgery was carried out smoothly due to side effects, such as dynasium or dynasium, etc., compared to the case where the victim’s blood pressure was not taken by the victim.

(5) In the case of the blood species or liquid species that occurred on the part of the instant surgery, it does not constitute a big problem unless there is a chlosta in itself. Moreover, even if the victim was at the hospital of the Defendant operation for disinfection, etc. after the surgery and did not take any additional treatment due to the victim’s failure to do so for about 15 days from March 20, 2012 to April 3, 2012, it is difficult to distinguish whether the infection verified after the surgery was caused by the Defendant’s mistake in the course of the surgery or by the victim’s negligence in the course of recovery after the surgery.

(6) Even if the victim’s statement is based on the victim’s statement, the victim has been taking the high blood pressure for a long time. As such, it is difficult to find out data on whether the victim should suspend the use of high blood pressure for a considerable period of time in order to undergo a relatively minor sexual surgery, such as the instant surgery, and whether the victim should not perform the same degree of surgery as the instant surgery for a considerable period of time while taking the high blood pressure.

C. Examining these facts and circumstances in light of the legal principles as seen earlier, it is difficult to view that the evidence submitted by the prosecutor alone proves that the Defendant did not perform his/her duty of care to the extent required for a universal doctor engaged in the same work, and thereby, the Defendant’s injury, such as delayed departure from or recovery from blood or he/she was caused by a prolonged period of time during the surgery to the victim during the surgery, but the occurrence of an injury to the victim, such as the occurrence of dystrophy on the relevant part, is beyond reasonable doubt.

Nevertheless, the lower court found the Defendant guilty of the facts charged in this case on the grounds stated in its reasoning, on the ground that there was a misunderstanding that the Defendant did not verify whether the Defendant was a drug used by the victim at the time of the surgery or whether he appeared a sensitive response to the drug, etc., and that there was a proximate causal link between the Defendant’s mistake and the injury of the victim. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by failing to exhaust all necessary deliberations by misapprehending the legal doctrine on the proof of criminal

3. Conclusion

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.

The presiding judge shall keep the record of the Justice

Justices Kim Yong-deok

The Chief Justice Park Jong-young

Justices Kim Jae-han