2014Da6749 (Definition)

1. A;

2. B

3. C.

1. School juristic person D;

2. E.

Busan District Court Decision 2013Na6138 Decided December 13, 2013

June 23, 2016

The part of the judgment of the court below against the defendants is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. The amount of consolation money, etc. to a doctor against his/her breach of duty of explanation, even if the doctor's duty of explanation arises not only in surgery but also in all stages of diagnosis, diagnosis, treatment, etc.;

The reason for imposing the duty to pay is that a physician suffers from mental suffering resulting from the loss of opportunity by selecting whether a patient would receive a medical act by exercising his/her right to self-determination if he/she had explained the symptoms of a disease, the details and necessity of treatment or diagnosis methods, and risks likely to arise therefrom before the act. In this sense, the explanation of a doctor is not for all the medical process, but for all the medical process, such as surgery, etc. where a doctor performs a medical act which is likely to cause adverse results, or where a doctor performs a medical act which is anticipated to cause adverse results, such as death, etc., and a doctor is not required to choose a patient by his/her own decision, and it is not for the patient to receive consolation money if he/she had given the patient an explanation of the symptoms of a disease, the procedure of treatment or diagnosis methods, and the risk that may arise therefrom, or for the patient’s self-determination right to self-determination is not an issue subject to the duty to pay consolation money (see, e.g., Supreme Court Decision 2013Da3618484, etc.).

Meanwhile, in a case where there is a possibility of occurrence of a chronic disease as a result of the pertinent medical act, such as an operation, or in the process of the subsequent medical treatment, a doctor is obligated to explain and guide the patient by providing specific information in accordance with the patient’s age, educational degree, and physical and mental conditions, etc. (see, e.g., Supreme Court Decisions 2004Da64067, Apr. 29, 2005; 2007Da70445, Jul. 22, 2010; 2007Da7045, Jul. 22, 2010) so that the patient can voluntarily determine and cope with what is necessary measures to prevent the occurrence of a serious consequence due to the method of medical treatment or a group of after-the-counter disease (see, e.g., Supreme Court Decision 2007Da74045, Jul. 22, 2010).

2. A. The reasoning of the lower judgment reveals the following facts.

1) On November 14, 2009, the deceased H (hereinafter referred to as the “the deceased”) was diagnosed as having cerebrovascular surgery at a nearby hospital, which found two pains, and was transferred to an emergency room of the Defendant hospital, and was administered with the opening operation on the left side of the mouth and the consultation for cerebrovascular surgery (hereinafter referred to as “cerebrovascular surgery”) from the medical team lived by Defendant E, a medical specialist of the Defendant E, and discharged on December 7, 2009.

2) While being hospitalized, the Deceased was able to have a stringing life on the left side of the horse, etc., the Deceased was observed on the part of the injection with water collection, and received anti-gropic colon treatment from around December 3, 2009, and was determined on the date of discharge and the date of discharge.

3) As a result, after discharge, the deceased aggravated due to the clific loss of approximately approximately 2 x 3 cm of size, the deceased’s clific value becomes worse.

12. 14. Re-hospitalized on 14.12.12. 23. 209. 23. 2009. The tissue recovered from the upper part of the upper part was transplanted on the upper part of the upper part, and received surgery on January 28, 2010.

4) In the kidne skill test conducted on February 1, 2010, the Deceased showed an opinion on acute fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluorals, which increased both blood and cluoral cluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral.

5) On February 7, 2010, the Deceased appeared to have been administered with urine, etc. on February 16, 2010, which was doubtful in the ple X-ray test conducted on February 7, 2010. ② On February 16, 2010, the Deceased had been administered with urine, etc.: (a) as a result of the urgical test on the urgical urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic urgic son.

6) The Deceased showed a disguised disability disorder on March 2, 2010, and the Defendant hospital kids and medical professionals conducted an internal border test in cooperation with the fire extinguishing machine, and confirmed the leakage of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the stos of the s

8) From March 8, 2010, kidne and medical professionals replaced anti-resistant medication with a hydantin (hydantin). At that time, the deceased was in a state of deflacing the hydant into a deflac and discharging the hydant with a mechanical system.

9) On March 11, 2010, the chest X-ray test showed that the deceased’s pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary x. The medical personnel immediately following the change and medication of antibioticic pulmonary pulmonary pulmonary pulmonary pulmonary x. On March 13, 2010 and 23:00, the deceased’s pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary

10) From around 02:50 on March 14, 2010, 201, the kidy and medical personnel within the Defendant Hospital began to perform the mechanical smoking to the deceased through the engine insertion. At around 09:40, the blood was discharged through the tubes connected to the deceased’s coin, and thus, the blood was deemed to have deteriorated, such as blood was discharged, and the blood was not successful by administering the blood pressure together with the blood, blood transfusion, and the blood was not successful, and the tragic surgery for the suspension of the tragic blood was not attempted to have a situation of the deceased.

11) On March 15, 2010, medical professionals continued to implement the Constuous Reconstment Act ("Constuous Restment Act, CRT, so-called "blood speculation"), and endeavored to increase the blood pressure by using large quantity of negative pressures and blood construants together, but failed to do so.

12) A medical personnel who deemed that it is impossible for the deceased to recover from an excessive blood relative was deprived of cardiopulmonary resuscitation with the consent of his/her guardian, and the deceased died at around 08:55 on March 17, 2010. 13) In the death report, the deceased’s private person on the death report is indicated as the blood relative as his/her own death.

B. On March 17, 2010, the lower court determined that the medical personnel at Defendant hospital did not have the duty to explain the deceased’s or the plaintiffs’ life and body side effects on the following grounds: (a) on the ground that the deceased had undergone all kinds of treatment and surgery, such as medication of various drugs, dysology removal, skin removal, skin surgery, hyssis, blood injection, blood injection, etc. on the left side of December 14, 2009; (b) on the ground that there was no duty to explain the deceased’s or the plaintiffs to the medical personnel on the ground that the deceased’s medical personnel performed the duty to explain the deceased’s life and body risks and side effects, and there was no obligation to explain the deceased’s or the plaintiffs’ aforementioned treatment conditions; (c) on the ground that there was no risk, future treatment plan, or treatment plan; and (d) the medical personnel’s medical personnel on the deceased’s life and body condition; and (e) there was no need to explain the deceased’s medical treatment and clinical surgery.

C. However, the judgment below is hard to accept for the following reasons.

1) First of all, the court below acknowledged that the medical personnel of the defendant hospital violated the duty of explanation and did not perform the duty of explanation, among the detailed circumstances of the deceased's failure to perform the duty of explanation, the part that Defendant E did not provide sufficient explanation of the damaged condition at the time of re-hospitalize the deceased's or his guardian, such as management of the cerebrovascular surgery or methods of medical care, etc., and the part that the deceased did not provide sufficient explanation of the damaged condition at the time of re-hospitalize the deceased's re-hospitalize, the part that the stotopy, which was performed to cover stoves, caused the failure to explain or present measures after the failure, does not require self-determination of the patient, such as the process of surgery and the medical act likely to result from adverse consequences, and therefore there is no room for violation of the duty of explanation as a beneficiary of consolation money.

However, the part of Defendant E’s failure to explain necessary matters, such as management of a critical father or method of medical care, may be recognized as liable for damages to life and body in proximate causal relation, as the violation of the duty of guidance is a matter of violation of the duty of guidance. However, considering the fact that there is no special method of management other than that of taking the part in a clean care of the part in a minor skin, it is difficult to recognize the violation of the duty of guidance without any specific examination on the condition of the part in question, the risk or side effect of the prescription, the possibility or risk of a post gift, and the proximate causal relation at the time of discharge by the deceased.

Therefore, the lower court erred by misapprehending the legal doctrine on the duty of explanation, thereby failing to exhaust all necessary deliberations.

2) Next, the court below did not explain the prescription, efficacy, side effects, etc. of the above medicine to the deceased and the plaintiffs, even though medical professionals used multiple drugs, such as anti-pathic agents, anti-pathic agents, anti-pathic agents, anti-pathics, etc., such as spathics, spathics, propathics, propathics, etc., care citizens, anti-pathic agents, anti-pathic agents, anti-pathic agents, anti-pathic agents, anti-pathic agents, anti-pathic agents, anti-pathic agents, etc. for the long time of admission of the deceased and the plaintiffs, among the specific circumstances in which the medical professionals did not fulfill their duty to explain.

According to the records, the medical personnel at Defendant Hospital explained the operation process and method, complications possible after the operation, post-treatment and functional disorder, problems that may arise during the operation and anesthesia, problems related to blood transfusion, etc. while performing the operation and obtaining consent to the operation. While performing the above internal diagnosis and the internal examination and treatment, the medical personnel provided an explanation of the purpose and outline of the operation, the procedure of the operation, the procedure of the operation, or the after-the-sales treatment, and provided an explanation of the merger certificate. The medical personnel provided an explanation and consent to the blood injection, the procedure of the operation, the procedure of the operation, and the procedure of the operation, and the procedure of the blood injection in the blood stove, and provided an explanation to the guardian several times.

The court below's decision seems to have been administered in the course of a series of surgery and treatment for the deceased, and there is no room for the violation of the duty to explain as the beneficiary of consolation money if the significant result of the above medicine was not caused by the doctor's invasion. Thus, in order to recognize consolation money due to the violation of the duty to explain in relation to the medication of the above medicine, it shall be examined whether the above medicine was used for any purpose in any stage of surgery and treatment, the risk and side effects of the medicine, the frequency and gravity of side effects, and the degree of the above-mentioned side effects by each medicine, and whether the above medicine resulted from bad results such as acute bruth, pord, pord, pord, pord, the above-mentioned drhe

Nevertheless, without examining the aforementioned circumstances, the lower court erred by misapprehending the legal doctrine on the duty to explain, thereby failing to exhaust all necessary deliberations, on the whole of the medicines used by the Defendant Hospital medical professionals.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the part against the Defendants is reversed, and the case is remanded to the court below 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 Jae-young

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant

Justices Kim Jong-il