[1] Whether a doctor's duty to explain may be exempted in a case where there is little possibility that a risk may occur in the aftermath or side effect (negative)

[2] In a case where damages are claimed not only for consolation money but also for a violation of a doctor's duty of explanation, the degree of violation of the duty of explanation required and the degree of causation as to the result of damage (affirmative)

[1] The duty to explain in order to obtain the patient's consent to surgery, etc. cannot be exempted solely on the ground that there is little possibility that risks, such as post-treatment or side effects, may occur in accordance with the relevant medical practice. In the event that post-treatment or side effects are typically dangerous or irrecoverable in the relevant medical practice, the duty to explain is subject to explanation regardless of the probability of occurrence.

[2] In a case where a doctor violates the duty of explanation and seeks compensation for damages, not only the consolation money, as to the patient's loss of the opportunity to choose and the impossibility of exercising his/her right to self-determination, in a case where a serious result, such as death, etc., occurs to the patient due to an operation, the violation of the duty of explanation must be deemed to be the same as that of the doctor's breach of the duty of care required in the specific treatment process, and the causal relationship between such violation and

[1] Articles 390 and 750 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act

[1] [2] Supreme Court Decision 94Da3421 delivered on January 20, 1995 (Gong1995Sang, 885) / [2] Supreme Court Decision 93Da60953 delivered on April 15, 1994 (Gong1994Sang, 140) Supreme Court Decision 93Da52402 delivered on February 10, 1995 (Gong195Sang, 1281)

United Kingdom and five others (Attorneys Choi Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Defendant Law Firm Nam-nam General Law Office, Attorneys Kim Sung-ro, Counsel for the defendant-appellant)

Gwangju High Court Decision 94Na1721 delivered on November 17, 1995

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

Among the grounds of appeal and the statements in the briefs submitted after the lapse of the period, the supplement of the grounds of appeal shall also be deemed as well.

On the first ground for appeal

The judgment of the court below on the points out of theory (the fact that the defendant did not have any explanation as to whether there was any other treatment method than the operation or whether it is inevitable for the operation with respect to the implementation of the thome surgery of this case by general anesthesia, and that the above stude's medical history, etc., which should have been investigated in preparation for a case where it is impossible to use the stome's anesthesia prior to the operation, without conducting a prior investigation, was conducted without conducting a prior investigation on the medical history, etc. of the above stome's medical history, etc.) is all acceptable in light of the evidence relations cited by the court below, and there is no error of law by misunderstanding the facts against the rules of evidence, such as theory of lawsuit, which is contrary to the rules of evidence.

There is no reason to discuss this issue.

On the second ground for appeal

In general, in order for a physician to obtain consent to the act of causing harm to the human body, such as surgery, the patient himself/herself or his/her family members, by explaining matters deemed reasonable in light of the current medical level as to the symptoms of the disease, the content and necessity of the treatment method, the potential risk of the occurrence, etc., and allowing the patient to choose whether to receive the medical treatment or not. Such a doctor's duty to explain cannot be exempted solely on the ground that there is little possibility of causing harm, such as aftermath or side effects, in accordance with the relevant medical act. In cases where the aftermath or side effects are in danger or irrecoverable typically resulting from the relevant medical act, notwithstanding the scarcity of the possibility of occurrence (see, e.g., Supreme Court Decisions 94Da3421, Jan. 20, 1995; 93Da52402, Feb. 10, 1995).

According to the facts duly established by the court below, since 1956, an anesthesia et al. started to be used for a patient from around 1956, and since 1963 to 10,000, it is known that there may cause side effects, such as yellow sale, electric chronitis, and typosis, etc., after surgery, and the frequency of occurrence is not significant. However, once all, in the event of chalpule infection or typosis, the death rate reaches 50-100%. In fact, the degree of risk is as a result of the use of the above anesthesia. Thus, the defendants are obligated to explain the risk of side effects caused by the use of the above anesthesia to the patient, such as the above galpume, the plaintiff gale, the parent, and the maximum galp, etc., and the judgment below is just, and there is no error in the misapprehension of legal principles as to the doctor's duty of explanation in the medical insurance examination.

There is no reason for this issue.

On the third ground for appeal

In a case where a doctor violates the duty of explanation and seeks compensation for damages from the failure to exercise his/her right to self-determination when a patient dies, etc. due to an operation, etc. to the patient, the violation of the duty of explanation must be the same as that of a doctor's breach of the duty of care required in the specific process of treatment. Such violation must be proved that there exists causation between such violation and the patient's death (see Supreme Court Decisions 93Da60953, Apr. 15, 1994; 93Da52402, Feb. 10, 1995, etc.).

According to the facts duly established by the court below, the non-party 1 was a senior student in preparation for university entrance examination, who was healthy and experienced the surgery of this case without any other disease except for the framework of the judgment. In this case, the above alley does not per se cause any serious disease that may cause harm to his life, and even if the non-party 1, who is the mother of the above her mother, was performed an operation as stated in the judgment by using the anesthesia which is a anesthesia, and the above her mother of the her mother, and was started immediately after the commencement of an abnormal symptoms such as high heat, the defendants did not inform the above her mother, the plaintiff 1, the parent, and the maximum her mother, of whether the above her mother was an inevitable operation, and did not explain the side effects of the her mother. In such a case, the above her death or the above her mother could not have agreed to the above explanation by the defendants, and thus, the defendants did not have agreed to it.

Therefore, the judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the scope of damages or causation.

There is no reason to discuss the issue.

Therefore, all appeals are dismissed, and the 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 Ahn Yong-sik (Presiding Justice)