The case holding that the burden of proof on the causal relationship of the victim has been mitigated in a medical accident resulting from brain damage caused by severe breakdown in the course of an operation after a general anesthesia;

In a case where a patient suffers from a sudden stop in the process of a general anesthesia or an surgery and led to an increase in the overall paralysis, etc. due to cerebral injury, the victim's act of medical negligence based on the common sense of the general public cannot be verified in the course of a series of medical treatment and the causes other than a series of medical treatment can not be changed. In the case where the patient proves that there was no health defect that could cause such a result before the medical treatment was conducted by the patient, unless the patient proves that the result was not due to medical negligence but due to all other causes, such as the patient's unique transfer, the mitigation of the burden of proof that the patient is responsible for damages by estimating the causal relationship between the medical negligence and the result is more consistent with the compensation system that provides the fair and reasonable burden of damages.

Article 750 of the Civil Act, Article 261 of the Civil Procedure Act

Supreme Court Decision 94Da39567 delivered on March 10, 1995 (Gong1995Sang, 1281 delivered on February 10, 1995) Supreme Court Decision 94Da57701 delivered on December 5, 1995 (Gong1996Sang, 158)

Plaintiff 1 and three others (Attorney Jeong-chul, Counsel for the plaintiff-appellant)

Defendant Local Public Corporation Medical Center (Attorney Han-young, Counsel for defendant-appellant)

Busan High Court Decision 94Na3872 delivered on July 27, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Summary of the reasoning of the judgment below

The facts of this case, which the court below admitted the judgment of the court of first instance, and the gist of the defendant's liability are as follows.

A. On October 7, 198, the defendant medical center conducted a medical examination on the suspicions that occurred on the back part of the left part of the plaintiff 1's left part, explained that it is a simple local type of operation that can be diagnosed as a simple operation that can be removed from the hospitalization between the above plaintiff and the above plaintiff, and then hospitalized the above plaintiff on the 11th of the same month in order to complete a blood, liver, liver function test, and chest X-ray test as a pre-operation test and to conduct a climatic operation.

As a result of an examination conducted before the surgery, the above Plaintiff was diagnosed to have no disease other than the above local type: Provided, That around January 1987, and around April 198, 198, the disease was found to have been treated by the Defendant Medical Center’s external eurine eurology. On October 12, 1988, the above Plaintiff participated in the judgment of the court below, the Defendant 1, the house doctor, the surgery assistant Nonparty 2, and the nurse 2, who is the Defendant Medical Center’s medical doctor, and the above operation team was diagnosed to have no disease other than the above local type. Since the medical department of the patient was a part where blood circulation is well used as a part of the surgery, it is likely to cause toxic effect to the general eurine through blood, and at the same time, it is determined to use the above Plaintiff’s eurine and eurine gas to eliminate the patient’s anxiety and inconvenience in the operation.

Around 10:05 on the same day, the operation team found that the above plaintiff was not in a core test as a result of the operation before the operation and the examination of the results of the operation conducted at around 10:15, but it was confirmed that the above non-party 1 did not conduct a core test; however, it was confirmed that the above non-party 1 did not conduct an crypology test by cryping it to a crypine, and that the crypthal, which is an narcotics inducement agent, throthal at around 10:30, the patient was dumped, and the patient was dumped, and the patient was dumped, and the crypine 100mm of the crypine crypine 100m of the above crypine crypine 100m of the anesthesia, and the cump 20m of the anesthesia cryp to an artificial oxygen and 2 thoculic acid.

However, at around 10:50, the patient's blood pressure began after about 20 minutes after the commencement of the operation, and at around 10:50, the patient's blood pressure began after the operation, and the patient's blood pressure was reduced to the extent that it is impossible to measure the blood pressure, and there was an unknown cause. The operation team ceased operation and 100% of the above heart stop, and continued operation of the operation without any reaction while performing the operation at the same time as the pressure pressure control to the oxygen, but there was no response. After the operation, the blood pressure continued to spinephrine, which is the passenger pressure and the strongr, and the heart heart was changed to normal conditions. Accordingly, the above Defendant and Nonparty 1 continued to determine again the operation without any particular reason and continue to perform the operation without any specific operation.

After the completion of the operation, the above operation team moved the above plaintiff to the middle-patient's room, but the patient continued to suffer from blood pressure and pulmone in the absence of food, and the operation team continued to observe the operation after taking measures such as administering drugs for the blood pressure control of the patient, inserting the internal pipes inside the institution, and providing assistance and smoking, etc., but the patient was not able to recover from mixed water. On the 17th day of the same month after the operation, the presumption diagnosis was conducted by the medical center within the defendant medical center for the 5th day of the operation, and the patient continued to observe the patient, which led to the overall cerebriform function under the brain death test on the 20th day of the same month, the defendant medical personnel continued to provide medical treatment by transmitting the above plaintiff to the Busan University Hospital on the 24th of the same month, but the above plaintiff did not provide care, and the above plaintiff did not seem to have been suffering from mar's symptoms such as telegraph, mathy, brain disorders, and mental illness.

B. The penttos used as the instant narcotics inducement chemical requires special attention when using them for patients or institutional chromatic patients who are infected with respiratory infections, and the patients who have flabed in the Do may also have to close the cryp in the state of food after medication, and may have to close the crypin (in the case of the instant anesthesia, the crypin cryp and math block were used together with a flabin cryp in the case of the instant crypin), and there is a possibility that low flabism may occur due to the cryp or institutional cryposis due to the cryp action, artificial dyposis, etc., and the dypine is also studied when they are placed in the heart due to the decline of cardiopulmonal blood relationship. medically, the cause of brain damage is low flab, and there is a possibility that low flab in the case of the operation of the cryp.

C. Generally, a doctor dealing with a human life and health requires a duty of care to take the best measures necessary to prevent any danger that may arise from a surgery in light of the nature of his/her duties. In particular, general anesthesia such as this case requires a duty of care to take best measures, including observation of the patient's condition in preparation for any danger that may arise from the surgery, in preparation for a thorough observation of the patient's condition in preparation for all risks that may arise from the whole process before and after the surgery. As such, anesthesia such as this case has a significant impact on the patient's heavy risk of causing serious mergers or side effects by anesthesia or anesthesia medication depending on the patient's health condition, and there is a risk that anesthesia in the procedure will bring about serious consequences, such as death of the patient.

However, the Plaintiff 1 had the mental capacity of 1st and 5th organ infection. The Plaintiff 1, as part of the instant surgery, was presumed to have been in danger of heart suspension and pulmonary suspension due to the influence of reflective action, etc. caused by the depression during the surgery, as it was the back part of the instant surgery. In such a case, the Defendant in charge of anesthesia, as an examination before the surgery, should have conducted a thorough examination of the possibility of an accident caused by the patient’s peculiar transfer or side effects of medicine, etc., and it is difficult to find out that there was insufficient time for the Plaintiff 1 to conduct a thorough examination of 8th organ infection after the surgery, and that there was no specific reason for the first time after the surgery without any specific reason for the first time after the surgery, and that there was no specific reason for the first time after the surgery to remove the relevant anesthesia surgery, and that there was no specific reason for the first time after the surgery without any specific reason for the first time after the surgery.

D. It is clear that the above medical accident occurred in the course of the above defendant's anesthesia after the anesthesia and surgery. Since the above medical accident occurred in the process of the above defendant's anesthesia, considering that the above plaintiff 1 suffered from a pulmonary disease in the respiratory system requiring attention when using anesthesia or anesthesia inducement agents and the surgery level of this case is a burgical part, it is deemed that the heart test for the patient is essential. Furthermore, in the case of general anesthesia, even if it is proved to have been healthy after sufficient investigation in advance, it is impossible to find out that the above rate is extremely low to 0.1% or less, and it is reasonable to interpret that the above medical accident occurred in the above part of the defendant's 1 without considering the fact that the above accident occurred in the procedure of the above anesthesia and it is extremely difficult for the plaintiff 1 to find out that the above accident occurred in the process of the above anesthesia operation without any specific reason. Therefore, it is reasonable to interpret the above presumption that the above accident occurred in the first instance court's anesthesia operation and other than the above negligence.

2. Judgment on the grounds of appeal

A. In light of the records, it is justified that the court below's fact-finding, in particular, the prosecutor prior to the surgery found the medical ability of the above plaintiff to receive medical treatment due to neutism and alphar infection, and it is not erroneous in the misapprehension of facts against the rules of evidence, as pointed out in the grounds of appeal.

B. Furthermore, in light of the facts duly established and the records, it seems essential for the court below to conduct a cardiopulmonary test prior to anesthesia by using pentines, inhaled narcotics, etc., or continuously monitor cardiopulmonary function by attaching a cardiopulmonary monitoring device in order to predict cardiopulmonary anesthesia and heart suspension in advance. On the other hand, it seems that the court below did not have any error in the misapprehension of the legal principles as to whether the Defendant failed to perform an anesthesia examination prior to anesthesia prior to anesthesia, nor did it be found that there were any errors in the misapprehension of the legal principles as to anesthesia prior to anesthesia examination by attaching a cardiopulmonary monitoring device during anesthesia examination, and thus, it would have been possible to reduce brain damage if the Defendant neglected to perform the examination (see, e.g., inquiry about 754 pages of the records), and there were no errors in the misapprehension of the legal principles as to anesthesia examination prior to anesthesia examination by the court below, which did not have been found to have been conducted prior to anesthesia examination by the court below.

C. In order to be held liable for tort due to breach of the duty of care or non-performance of the original medical act, as in the other cases, the existence of causation between the violation of the duty of care in the medical act, the occurrence of damages, and the violation of the duty of care and the occurrence of damages should be premised. However, the medical act requires highly specialized knowledge in the case of large scale, and the process of treatment is limited to only the patient himself/herself, and the medical method to achieve the result of treatment depends on his/her own discretion. As such, the issue of whether the direct cause of damages occurred due to the medical negligence is obvious as an ordinary person who is not an expert, and it is extremely difficult for the patient to prove medically the causal relationship between the occurrence of damages and the violation of the duty of care in the medical act and the occurrence of damages. As in the instant case, it is extremely difficult for the patient to prove that the patient was not liable for damages due to the 90th degree of negligence in the medical act due to the overall anesthesia and operation, not due to the 90th degree of negligence in the medical act.

Therefore, in light of the fact that the heart stop, which is the cause of Plaintiff 1’s brain damage, was in the process of the instant anesthesia and surgery, and there is no possibility that the cause for the instant anesthesia and surgery and the cerebral injury of the said Plaintiff might have changed, and as seen above, it is necessary for the above Defendant to conduct a cardiopulmonary test in advance prior to the implementation of the anesthesia. However, even though the Defendant did not take any measures to permanently monitor the cardiopulmonary function while performing the anesthesia and surgery, the above Plaintiff’s cerebral damage cannot be presumed to have been caused by the mistake in the process of the instant surgery by the said Defendant, etc.

D. However, the court below erred by failing to specifically state whether the above medical accident occurred or whether the above surgery was the cause of expansion of symptoms, and as long as it cannot be deemed inappropriate for other hospitals to continue to perform anesthesia and surgery without suspending the surgery, and by failing to take measures after the surgery, such as sending patients late to Busan University Hospital, etc., the court below held that it was inappropriate for the court below to conclude that it was inappropriate for the court below to acknowledge that the above measure of continuing to perform anesthesia and surgery (limited to 20 minutes of surgery after the resumption) on the removal of the aftermath surgery which is a relatively simple surgery after the heart stop occurred, and that it was inappropriate for the court below to conclude that there was no error by misapprehending the plaintiff's liability to compensate for damages after the surgery.

E. Therefore, the lower court’s determination that Defendant Medical Center should be liable for damages caused by the instant medical accident is justifiable. The grounds of appeal cannot be accepted.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)