[1] Where a patient who has no possibility of rehabilitation cannot refuse a request to discontinue life extension treatment

[2] The case holding that the claim for removal of an artificial smoking machine against the patient's will, which is an unknown plant, whose life is extended due to the help of the artificial smoking machine, is accepted

[1] In a case where the extended treatment of a patient without possibility of recovery not only becomes physical suffering but also causes an indefinite extension of mental suffering, which requires the patient to extend his/her life without consciousness in a plant condition, thereby undermining human dignity and human value, the benefit to cope with the natural death at the boundary of his/her life and death is greater than the benefit to maintain his/her life because it accords with human dignity and value. Therefore, even if the treatment is continued, the patient who is dependent on an artificial resistant patient’s life due to an unidentified plant condition does not have any possibility of recovery and thus, medical treatment is medically weak; ② in a case where the patient is presumed to have the patient’s intention to discontinue the treatment in advance, taking into account his/her intention, character, values, family-friendly density, age, life attitude, expected life duration, patient’s condition, etc., and thus, the patient’s intention to die more than the benefit to maintain the patient’s life by complying with human dignity and value. Therefore, the patient’s act of artificial self-determination and removal of his/her own right to self-determination without any justifiable reason to remove the patient’s intention.

[2] The case affirming the claim for removal of an artificial smoking machine against the patient's will, which is an unknown plant, whose life is extended due to the help of the artificial smoking machine, in the continuous state of the patient's artificial smoking.

[1] Articles 10 and 37(2) of the Constitution of the Republic of Korea; Articles 250 and 252 of the Criminal Act; Article 15 of the Medical Service Act; Articles 6, 9, and 10 of the Emergency Medical Service Act / [2] Articles 10, 37(2) of the Constitution of the Republic of Korea; Articles 250 and 252 of the Criminal Act; Article 15 of the Medical Service Act; Articles 6, 9, and 10 of the Emergency Medical Service Act

Plaintiff 1 and four others (Attorneys Shin Jae-ho et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Attorney Shin Dong-dong et al., Counsel for defendant-appellant)

November 6, 2008

1. The defendant shall remove the artificial smoking machine against the plaintiff 1.

2. The claims of plaintiffs 2, 3, 4, and 5 are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the plaintiff 1 and the defendant shall be borne by the defendant, while the part arising between the plaintiff 2, 3, 4, and 5 and the defendant shall be borne by the plaintiff 2, 3, 4, and 5.

Plaintiff 1: It is so ordered as per Disposition 1.

Plaintiff 2, 3, 4, and 5: The defendant shall remove the artificial smoking machine of Plaintiff 1.

1. Basic facts

The following facts may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap evidence 1 through 4 (including the serial number) without dispute between the parties or by the whole purport of the pleadings.

A. Plaintiff 1 is a patient who suffered from brain damage caused by low oxygen, and is under treatment by attaching an artificial absorption at the middle-patient’s room at the Defendant’s ○○ Hospital (hereinafter “Defendant Hospital”). The rest of the Plaintiffs are Plaintiff 1’s children.

B. On February 18, 2008, in order to verify whether an lung cancer occurred, Plaintiff 1 was suffering from an excessive explosion during the process of undergoing a cardiopulmonary tissue test using an engine diameter at the Defendant Hospital. Accordingly, the main doctor, etc. of the Defendant Hospital performed the heart organs, etc., thereby restoring the cardiopulmonary function and attaching an artificial absorption device, but Plaintiff 1 was transferred to the middle patient room by suffering from low oxygen brain damage.

C. From this point of view, Plaintiff 1 is continuously in plant livering condition, and Plaintiff 1 is receiving treatment, such as anti-biological medication, artificial nutrition supply, and water supply, in the state of attaching artificial absorption at the patient room at the Defendant hospital, and the removal of artificial absorption will soon lead to death.

2. Determination on the Plaintiff 1’s claim for removal of an artificial smoking machine

A. The parties' assertion

(1) Plaintiff 1’s assertion

The plaintiff 1 can decide the suspension of treatment based on the right to self-determination guaranteed by the Constitution. The plaintiff 1 is already in an irrecoverable state and currently being performed with respect to the plaintiff 1 is not improving the plaintiff 1's health, but merely simply extending the life signs. It is medically meaningful. The plaintiff 1 expressed his intention to reject the extension of life in a usual sense and to want natural death. Thus, the plaintiff 1 has the intention to remove the artificial smoking machine as the suspension of treatment in this case. Thus, the defendant must remove the plaintiff 1 from the artificial smoking machine.

(2) The defendant's assertion

The plaintiff 1 cannot confirm his intention due to the unknown consciousness, and the suspension of treatment is the death of the plaintiff 1, so the defendant hospital, which takes precedence over the duty to protect the patient, cannot discontinue treatment against the plaintiff 1.

(b) Medical doctor (referring to a medical doctor, and a juristic person that establishes a medical institution under the Medical Service Act) with respect to artificial smoking shall be deemed to have neglected medical treatment;

(1) Article 10 of the Constitution provides, “All citizens shall have dignity and value as human beings and have the right to pursue happiness. The State shall have the duty to confirm and guarantee the fundamental human rights of an individual.” In addition, an individual’s personality right and right to pursuit of happiness is premised on the individual’s right to self-determination and right to self-determination. The right to self-determination and right to self-determination are also included in the right to self-determination as to how the patient maintains his/her life and body function. Since medical practice for diagnosis and treatment inevitably entails infringement on the patient’s body and body function, the patient has the right to self-determination as to whether to receive treatment of his/her disease and the scope of treatment. Therefore, even if the patient continues to undergo treatment and the patient’s request for treatment results in death in the future, the patient’s duty to continue to provide treatment or discontinue treatment based on the patient’s right to self-determination and decision-making based on the patient’s right to self-determination should not be exercised.

(2) If so, even if the patient’s treatment is discontinued and immediately dies, the doctor is obliged to discontinue the treatment at the patient’s request.

Even though the right to life is not explicitly provided in the Constitution, it is a aggressive and natural legal right that serves as the basis of human dignity, which serves as a fundamental right that serves as the premise of all fundamental rights prescribed in the Constitution, and the State is obligated to protect the life of any other person pursuant to Article 10 of the Constitution, and no one shall infringe on the life of any other person. Therefore, the exercise of the patient’s right to self-determination on treatment is inevitable to the extent that it does not infringe on the essential contents of the right to self-determination in accordance with Article 37(2) of the Constitution, and the Medical Service Act, the Emergency Medical Service Act, the Act on Emergency Medical Service, and the Criminal Act, as a legal limitation, have the following provisions.

Medical Service Act>

Article 15 (2) Medical personnel shall give the best treatment to emergency patients in compliance with the Emergency Medical Service Act.

(2) Where an emergency medical personnel receives a request for emergency medical services or discovers an emergency patient while on duty, he/she shall provide emergency medical services immediately, and shall not refuse or evade such request without justifiable grounds.

Article 9 (1) Emergency medical personnel shall explain to emergency patients on emergency medical services and obtain their consent, except in the following cases:

1. Where the emergency patient has no ability to make decisions;

2. Where a delay in the emergency medical service due to the procedures for explanation and consent brings about a danger to the life of a patient or a serious mental or physical impairment;

Article 10 (Emergency Medical Personnel shall not suspend the emergency medical service to an emergency patient unless there exists a justifiable reason.

A person who kills another upon request or with consent of another person under Article 252 (1) shall be punished by imprisonment for at least one year up to ten years.

(2) The preceding paragraph shall apply to a person who instigates or aids and abets another to commit suicide.

According to the above, although the emergency medical service provided to an emergency patient requires the patient's consent in principle, if the patient has no ability to make decisions or there is an imminent danger to his/her life, the doctor is not obliged to commence the emergency medical service even without going through the explanation and consent procedure, and the doctor shall not discontinue the emergency medical service unless there is any justifiable reason. In cases where the patient's immediate death is caused by suspending the emergency medical service, the patient shall be regarded as the emergency patient unless there are any special circumstances. In light of the principle of life protection and penal provisions such as the crime of aiding and abetting suicide under the Criminal Act, it is reasonable to deem that there is no justifiable reason to suspend the medical treatment in principle, even if the patient demands the suspension of the medical treatment, the doctor does not have any duty to respond to the request, and thus the exercise of the right to self-determination

Therefore, even if it is possible to maintain life with the aid of an artificial smoking machine, but if the removal of the artificial smoking machine is immediately in a situation resulting in the immediate death, the doctor does not, in principle, have a duty to respond to the patient's request to remove the artificial smoking machine by means of the suspension of treatment.

(3) However, human beings only differ in time and are fit for the moment that every lives are finished, human dignity is based on the right to life. However, the ultimate value that should be realized not only during normal life but also between the process of facing the death and the net life of the dead. In particular, today's development of medical technology enables the maintenance of life and the extension of life with medical device and the development of medical technology to lead not only physical pain to a patient with no possibility of recovery but also to an indefinite extension of life without consciousness in plant condition, thereby undermining human dignity and human value. In such a case, accepting natural death at the boundary of the life and the death is more consistent with human dignity and value and thus, it would be more significant than the benefit of maintaining the life of the patient. Therefore, even if the patient's life depends on the patient's artificial life with an unknown plant condition, it is more likely that the patient will not be able to refuse the removal of his/her life without any justifiable reason, considering his/her family's dignity and value, and it is more reasonable to expect that the patient's life will will still exists in advance.

(4) In a case where a physician cannot refuse the request for the discontinuance of treatment of a patient, that is, the substantive and procedural requirements on the case where the justifiable reason under Article 10 of the Emergency Medical Service Act is recognized, would be more desirable to be prescribed in detail by legislation. However, even if there is no specific legislation, the right to pursue dignity in complying with the right to refuse treatment and the death based on the right to self-determination of the patient, as a right derived directly from the Constitution, can be established by the interpretation of the law that takes into account conflict with the principle of life protection and balance of interests, and the legislation that requires further requirements or reinforces the requirements may also be allowed unless it violates the Constitution

C. Determination on the claim for removal of the artificial smoking machine of this case

As seen earlier, Plaintiff 1 is currently in a continuous plant condition and the removal of an artificial smoking machine results in the immediate death. Therefore, in order to determine that the Defendant is obligated to remove the artificial smoking machine against Plaintiff 1 upon Plaintiff 1’s request, it shall meet the above requirements, and therefore, it shall be viewed as above.

(1) Possibility of recovery and medical uncertainty of treatment;

Determination on the possibility of recovery and medical integrity of treatment shall be based on the medical diagnosis conducted by the third neutral medical institution as well as the hospital in charge of treating the patient. The following facts shall be recognized in light of the following facts, as a result of the written evidence No. 4 (including the branch number), the witness Non-Party 1 and 2's testimony, the medical record appraisal of the Seoul National University Law School, and the result of the court's entrustment of physical examination of the Seoul National University Law School.

(A) According to medical literature (Plum and Posnler’s Doiathono, 4th Edition, 2007), in the case of a patient with a normal continued plant condition, at the time when three to six months have passed since the occurrence of the condition, food will return to 0 to 8%. This is based on a general presumption that may vary depending on the patient’s condition and the scope of brain damage, and that is based on a psychotropic examination without brain images.

(B) On February 18, 2008, Plaintiff 1 was in the state of being unable to maintain the respiratory without the aid of the artificial absorption machine, which was in a state of being in a state of being unable to keep the pulmonary condition due to the low oxygen brain injury. The Plaintiff 1 maintained only part of the brain function, such as being unable to communicate due to the loss of the recognition function of the brain, being able to communicate with the outside, being able to voluntarily stimulated, and showing anti-cerebral cerebral function, which was implemented on April 18, 2008.

(C) At present, Plaintiff 1 was aged 76 years of age and did not seem to have a change of medically meaningful improvement, even though 8 months after the plant condition occurred, and it was medically meaningful due to lack of self-harm, and breathing of the artificial respiratory machine. Voluntary breathing of snow, but voluntarily breathing of snow, but did not seem to have a breathic reaction to the external blag, but the breathic reaction is not likely to have a face breathic reaction, but both of whom are high on the right side, and the breathal line of the breathic is abnormal.

(D) According to the brain MDR test conducted on October 16, 2008 with respect to Plaintiff 1, the brain overall chilling is showing severe chilling, and the cerebral tension has been destroyed, and the structure of the chille and award does not seem, and the chilling of brain and the chilling of severe damage to brain. However, due to the existence of a part of the brain function, there appears a voluntary eye and the reflective movement of the chille.

(E) Although Plaintiff 1’s brain-dead status is not deemed to be a brain-dead condition because part of the brain function is maintained and there is no flat phenomenon of brain wave. However, compared with the occurrence of plant condition due to external wounds or external disorder, it is impossible for Plaintiff 1 to perform self-harm because the occurrence of plant condition is due to the most bad cardiopulmonary disorder, and thus, it is close to brain-dead conditions due to more serious plant-related conditions than normal continuous plant-related conditions.

(바) 원고 1의 담당 주치의인 의사 소외 1은 원고 1의 위와 같은 현재 상태를 감안할 때 의식의 회복가능성은 5% 미만이라고 보고 있고, 원고 1에 대한 진료기록을 감정한 서울대학교병원 의사 소외 3은 의식의 회복가능성이 거의 없다고 보고 있으며, 원고 1의 신체를 감정한 서울대학교병원 의사 소외 4 역시 의식의 회복가능성이 없다고 보고 있고, 원고 1의 신체를 감정한 서울아산병원 의사 소외 2 또한 원고 1은 이미 대뇌 피질이 파괴되어 있으므로 의식이 회복될 가능성이 없고 자발호흡을 하게 될 가능성도 없으며, 최선의 회복을 한다고 하더라도 의식 및 자발적인 움직임의 회복은 불가능하며 호흡을 하고 눈을 깜박이는 상태로 침대에 누워있는 식물상태로의 회복만을 상정할 수 있다고 보고 있다.

(G) In ordinary continued plant life-sustaining conditions, the expected life-sustaining period is two to five years, and Plaintiff 1 is unable to self-harm and the scope of brain damage is greater than that of ordinary plant condition, so the expected life-sustaining period may be shorter than that of Plaintiff 1. The doctor Nonparty 2 reports that the expected life-sustaining period of Plaintiff 1’s expected life within one year from the date of the occurrence of plant condition and within three to four months from the present.

According to the above facts, it is reasonable to view that there is no possibility that Plaintiff 1’s recovery of consciousness at present and there is no possibility that it would be a situation where it would be able to survive without any constant aid such as an artificial smoking machine, and that the treatment of an artificial smoking machine, currently being implemented with Plaintiff 1, as it does not affect the recovery and improvement of Plaintiff 1’s condition, is medically unreasonable.

(2) The patient's intent

In principle, the patient's intention to discontinue treatment based on the patient's right to self-determination is valid on the premise that the patient was provided with accurate information on the disease and treatment at the time of discontinuance of treatment. However, it does not mean that the patient's intention to discontinue treatment should be explicitly expressed even in cases where the patient is in an unidentified state, but it is possible to exercise the patient's right to self-determination based on the presumed intention by estimating the patient's genuine will that the patient had expressed if the patient had been provided with information on his/her current condition and treatment.In relation to presumption of intention, if the patient clearly expressed his/her intention to take any action in the same situation as at the time before he/she loses his/her capacity, it shall be a material to presume the patient's intention as at the present time. However, unless there is a legislation requiring the patient to clearly express his/her intention in writing, if it is rejected, the patient's right to refuse treatment can not be viewed as a result of exercising the patient's right to refuse the patient's right to refuse treatment in a health situation.

As to this case, considering the health unit, Gap evidence No. 1 (including the paper number), and non-party 5's testimony, the plaintiff 1 refused to open an engine that can extend the life until 3 years have come to fit for the heart disease and the husband's life as it is. At the time, the plaintiff 1 stated that "at the time of birth due to a good condition in the hospital, she shall not be breath. joint signature by machinery. It does not seem that the patient would have been able to take care of the patient's body and live in the bottle, etc., and it would be recognized that the plaintiff 1 would be able to see that the plaintiff 1 would have no other person's life-sustaining time from the date of his refusal to take care of the patient's body, and that the plaintiff 1 would have no other person's life-sustaining time from the date of his/her life-sustaining time to the other, and according to the above circumstances, the plaintiff 1 would be able to be seen as having no other person's life-sustaining condition than the plaintiff 1's present time.

(3) Conclusion

Therefore, the plaintiff 1 has the right to request the defendant to remove the artificial smoking apparatus attached to him/her, and the defendant has the duty to comply with this.

3. Determination as to the claim by Plaintiffs 2, 3, 4, and 5 for removal of an artificial smoking machine

A. The above plaintiffs' rights and interests should also be considered in relation to the treatment of plaintiffs 1, who are their family members. The continued attachment of artificial smoking machine causes a large economic and mental pain to the above plaintiffs and infringes upon human dignity and value, the right to pursue happiness, the right to equality, the right to freedom of conscience, the right to health, and the right to property. Thus, the above plaintiffs have the right to seek removal of artificial smoking machine independently.

However, as seen above, even if the suspension of treatment is based on the patient's exercise of the patient's right to self-determination and the family members of the patient suffer economic and mental pain due to the extension of life for the patient, it is difficult to view that the above plaintiffs have independent right to claim the suspension of treatment, which brings about the reduction of the patient's life, unless there is a legislation on the suspension of treatment. Thus, it is difficult to view that the above plaintiffs also have the right to claim the removal of the artificial smoking machine of this case against the plaintiff 1, and therefore, the above plaintiffs' above assertion is not accepted (However, the family members shall be able to substantially achieve the purpose by claiming the suspension of treatment based on the presumed intention of the patient's special representative as in this case).

B. In addition, the above plaintiffs, since they terminated the treatment contract with plaintiffs 1, they asserted that the defendant is obligated to remove the above plaintiffs from the artificial smoking machine of this case.

A medical contract is a kind of delegation contract that is established when a patient entrusts a doctor with medical treatment such as the treatment of a disease, and a doctor accepts the contract, which may be concluded in the form of a contract for a third party, such as the case where a guardian concludes a medical treatment contract for the patient. In such a case, consent or profit declaration should be made to a third party to perform medical treatment for the patient, and in a case where a third party has no mental capacity, the declaration of intent of a third party's profit to medical treatment within the extent that is reasonable in light of medical and social norms can be presumed. Such a medical contract can be presumed to be concluded in light of the nature of the contract, which is based on the premise that the patient's bodily harm is done in accordance with Article 689(1) of the Civil Act or based on the trust thereof, it is possible for the contracting party to terminate it at any time. However, it is difficult to view that the duty of the doctor to provide medical treatment to the third party, the patient's guardian, etc. in the contract for the third party has terminated the contract for the patient.

As to the instant case, there is no assertion or evidence as to the fact that Plaintiffs 3, 4, and 5 concluded a medical contract with the Defendant with the Defendant with respect to the Plaintiff 1, and thus, the claim based on the termination of the medical contract of the said Plaintiffs is without merit without further need to examine.

Next, in light of Plaintiff 2’s claim for termination of the medical treatment contract, Plaintiff 2’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her.

4. Conclusion

Therefore, the plaintiff 1's claim of this case is accepted on the ground of its reason, and all of the remaining plaintiffs' claims are dismissed on the ground of its ground. It is so decided as per Disposition since provisional execution is not attached to the nature of the claim.

Judges Kim Jong-soo (Presiding Judge)