In a case where a medical doctor performed a surgery with the patient’s consent on the premise that the patient’s explicit refusal to blood transfusion had no blood transfusion, and the surgery process led to an urgent situation where the patient’s life is at risk without blood transfusion, the standard for determining whether the patient’s right to self-determination to refuse blood transfusion should be considered at the time of medical treatment, and whether the patient’s right to self-determination to refuse blood transfusion should be evaluated as having an equivalent value to the patient’s life / The premised requirement for the patient’s exercise of the patient’s right to self-determination /

In a case where the patient’s explicit refusal of blood transfusion had been performed with the patient’s consent on the premise that the patient’s refusal to blood transfusion did not make a blood transfusion, and the surgery led to an emergency where the patient’s life would be at risk without blood transfusion during the surgery, in principle, the choice of inevitable means of blood transfusion may be considered to preserve the patient’s life. However, when the patient’s duty to respect the patient’s self-determination right is assessed to have an equal value, the medical treatment should be performed in consideration of such duty.

In any case, whether the right to self-determination of a patient who refuses a blood transfusion is of an equal value to his/her life should be determined by comprehensively taking into account all the circumstances, such as the patient’s age, intellectual ability, family relationship, and background, circumstance, and purpose behind exercising the right to self-determination of refusal of blood transfusion, whether the intention of refusal is temporary or based on firm religious or conscientious belief that has continued for a considerable period, whether the refusal of blood transfusion can be evaluated as the substantial purpose of suicide, and whether the refusal of blood transfusion may not infringe on other third parties’ interests. However, if, in a case where it is deemed that there is a special circumstance that makes it difficult to compare and balance the patient’s life and self-determination right, if the doctor acted in the direction of respecting either of the two values incompatible with the patient’s own professional conscience,

However, such determination should be based on the premise that the patient’s performance of his/her duty to explain the possibility and stability of the treatment method that the patient refuses, i.e., the treatment method that can replace the blood transfusion, and any defect in the patient’s exercise of the patient’s right to self-determination should not be involved. In other words, the patient shall hear sufficient explanation from the doctor about the risk of life, etc. that may arise when he/she does not give blood transfusion or give blood transfusion during the treatment process, the effectiveness and limitation of the alternative medical method, and shall make a serious decision after understanding the doctor’s explanation, and shall take place within the scope anticipated in the course of exercising the explanation and the right to self-determination, and the doctor shall re-verification whether the patient has no intention to withdraw the refusal of the blood transfusion under the circumstances actually occurred.

In particular, in order to prevent the patient's life from being in danger due to the surgery, etc., a doctor is obliged to give medical treatment to the patient. Moreover, even in the case of an operation, a doctor is obliged to pay more careful attention to the patient's maximum method of treatment and to determine whether to conduct an operation, and even if it is possible to reduce the risk of the patient's death due to blood transfusion to a considerable extent, he/she is able to give up blood transfusion and substitute it according to the patient's decision-making. If the alternative method does not have the effect of preventing blood transfusion to the extent that it can completely substitute the blood transfusion, then the patient's risk may increase due to excessive blood transfusion during the operation. Thus, it is difficult to determine whether to conduct an operation as to whether it is the best method of treatment for the patient. Moreover, even in the case of an operation, efforts should be made to reduce the possibility of the above danger by continuously preparing or implementing the surgery at the risk of the patient's maximum risk due to blood transfusion in accordance with the current medical level, and thus, efforts should be made to ensure that the patient's life risk would not occur.

Articles 10, 12, 24, and 268 of the Criminal Act, Articles 6 and 9 of the Emergency Medical Service Act

Defendant

Prosecutor

Law Firm Gwangju-top Law Firm, Attorneys Transferred-jin

Gwangju District Court Decision 2009No1622 Decided December 2, 2009

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. We examine the patient's right of self-determination and doctor's duty of care to refuse blood transfusion in the course of operation.

A. Details of the duty of medical treatment under the medical treatment contract

If a patient requests a doctor to provide medical treatment, and the doctor begins to provide medical treatment in response to the request, a contract for medical treatment is concluded between the doctor and the patient. Pursuant to the contract for medical treatment, the doctor bears the obligation to diagnose and treat the patient by using all medical knowledge and medical technology for the treatment, etc. of the disease, and the patient bears the obligation to pay the remuneration.

Due to the progress of a disease and the change in the patient’s condition, the content and scope of the medical treatment are general and abstract at the time of the contract. However, since the contents of the medical treatment provided according to the confirmation of a disease, the patient’s condition and natural change, and the biological reaction by the medical treatment (hereinafter “patient’s health condition, etc.”) are embodied, a doctor has considerable discretion to select the methods of medical treatment as appropriate according to the patient’s health condition, etc. at the time of the medical treatment and the patient’s own knowledge and experience (see, e.g., Supreme Court Decisions 91Da23707, May 12, 1992; 2005Da5867, May 31, 2007).

However, in the case of performing medical treatment, such as surgery of a patient, a doctor shall explain the symptoms of a disease, the content and necessity of the method of treatment, the potential risk of occurrence, etc. in light of the current medical level, and make the patient choose whether to undergo such medical treatment by sufficiently comparing the patient’s necessity or risk (see, e.g., Supreme Court Decisions 92Da25885, Apr. 15, 1994; 2002Da4843, Oct. 25, 2002). The patient’s consent is to guarantee the individual’s personal right and the right to self-determination protected by the right to pursue happiness under Article 10 of the Constitution, and thus, the patient may decide on how to maintain his/her life and body function and select the medical treatment. Thus, the content of the medical treatment provided under the medical contract can be embodied by the patient’s explanation and consent.

(b) Selection and refusal of, and restriction on, medical treatment;

In light of the nature of the medical contract based on the right to self-determination and trust relationship, a patient may freely decide on whether to receive a medical treatment and terminate the contract concluded, barring special circumstances (Article 689(1) of the Civil Act). Furthermore, even when maintaining the medical contract, the patient may choose the specific medical treatment provided within the scope of guarantee of the patient’s right to self-determination and request modification of the contents thereof, and in principle, the doctor shall accept it and seek other appropriate treatment methods corresponding to the patient’s request.

However, human life is high and life is a fundamental right that serves as the premise of all the fundamental rights stipulated in the Constitution, and doctors perform medical duties with a mission to contribute to securing the health of the people, and are obligated to provide the best medical service to the patient. Thus, even if a patient so requests, a doctor should carefully and carefully determine whether to suspend medical treatment directly connected to the patient’s life or exclude specific medical treatment necessary to maintain the patient’s life from the method of medical treatment (see Supreme Court en banc Decision 2009Da17417, May 21, 2009).

(c) The patient's self-determination and refusal of blood transfusion;

As seen above, if a specific medical treatment is excluded from the method of treatment according to the patient’s right to self-determination prior to the commencement of the medical treatment, barring any special circumstance, the doctor may not compel the medical treatment.

However, our Constitution respect human life as the highest value, and if we look at the attitude of our criminal law punishing a person who commits suicide and the purport of the Emergency Medical Service Act with the aim of preserving life and removing serious mental and physical harm, it should be deemed that avoidance of treatment methods directly connected to his/her life in an emergency medical situation with high possibility of recovery should not be permitted in principle.

However, the patient's right to self-determination is the most essential right based on the human dignity and value as well as the right to pursue happiness. Thus, if there are special circumstances, such as the refusal of a specific treatment method does not aim at suicide, but there is no interest of a third party to be infringed, and the exercise of such right can be evaluated as being based on the constitutional value of value equal to life, the patient's will by such right to self-determination should also

Therefore, in a case where the patient’s explicit refusal of blood transfusion had been performed with the patient’s consent on the premise that the patient’s refusal of blood transfusion did not make a blood transfusion, and the patient’s death was in an emergency where the patient’s life would be at risk without blood transfusion during the surgery, in principle, the choice of an inevitable means of blood transfusion may be considered to preserve the patient’s life. However, when the patient’s duty to respect the patient’s right to self-determination is assessed to have equal value, the medical treatment should be performed in consideration of this.

In any case, whether the right to self-determination of a patient who refuses blood transfusion has an equivalent value to his/her life should be determined by comprehensively taking into account all the circumstances, such as the patient’s age, intellectual ability, family relationship, and background, circumstance, and purpose of exercising the right to self-determination of refusal of blood transfusion, whether the intention of refusal is temporary or based on firm religious or conscientious belief that has continued for a considerable period, whether the refusal of blood transfusion can be evaluated as the substantial purpose of suicide, and whether the refusal of blood transfusion may not infringe on any third party’s interests. However, if a doctor acted in the direction of respecting one of the two incompatible values of the patient’s own professional conscience in a case where it is deemed that there is a special circumstance that makes it difficult to compare the patient’s life and right to self-determination, such act cannot be punished.

D. Presumption and doctor's duty of care on the patient's refusal of blood transfusion

However, for this decision, it should be premised on the patient's fulfillment of the duty to explain the possibility and stability of the treatment method that the patient refuses, i.e., blood transfusion and alternative treatment method, and the patient's exercise of right to self-determination.

In other words, the patient shall hear a sufficient explanation from the doctor about the necessity of the blood transfusion in the course of treatment, the risk of life, etc. that may be caused if the patient does not obtain the blood transfusion, the utility and limitation of the medical method that can replace the blood transfusion, and shall make a serious decision after understanding the explanation of the doctor, and the situation within the expected scope in the course of exercising the explanation and the right to self-determination should occur, and the doctor should re-examine whether the patient has no intention to withdraw the refusal of the blood transfusion under the circumstances actually occurred.

In particular, in order to prevent the patient's life from being in danger due to the surgery, etc., a doctor is obliged to give medical treatment to the patient. In addition, even in the case of an surgery, a doctor is obliged to pay more careful attention to the necessity of the surgery, to determine whether it is the best method of treatment for the patient, and to determine whether it is the best method of treatment for the patient. Moreover, even if it is possible to reduce the risk of the patient's death due to blood transfusion at the time of performing the surgery to the maximum extent possible, a doctor is able to give up the blood transfusion and replace it according to the patient's decision-making, and if the alternative method does not have the effect of preventing blood transfusion to the extent that it can completely substitute the blood transfusion, it is possible to increase the risk of the patient's death due to excessive blood transfusion during the surgery. Therefore, even if the surgery is performed, efforts should be made to determine the possibility of continuing the surgery at the risk of causing the patient's life risk in light of the reality and reality of the surgery.

2. A. The following facts are revealed: (a) the situation prior to the instant surgery and the summary of the progress of the surgery, as recognized by the lower court.

In around 1975, the deceased non-indicted 1 (the 62 years old at the time of the instant case, hereinafter referred to as the “the deceased”) suffered tuberculosis infection on the right upper part of the upper part of the upper part of the 1975, and undergone a genetic surgery between the pelvis and the pelvise. They want to undergo surgery to change the right upper part of the upper part of the upper part of the pelvis and the pelvise into the artificial pelvise.

On December 207, 2007, the Deceased was to undergo an operation to administer another person’s blood without blood transfusion (hereinafter “the blood without blood transfusion”) (hereinafter “the blood transfusion method”), and asked the Defendant, who is a doctor affiliated with the above hospital, at ○ University Hospital on early December 2, 2007. The Defendant confirmed the overall examination and the response to blood species, and confirmed that he/she is able to conduct an operation by blood without blood transfusion. While it is possible for the Deceased to conduct an operation without blood transfusion, according to the surgery conditions, the Deceased was likely to have died due to blood transfusion unless he/she does so.

The Deceased had a belief that he or she would not be subject to another person’s body with the belief that he or she was more valuable than that of his or her life. This is a doctrine that has been recognized as historically in a religious organization to which the Deceased belongs.

On December 17, 2007, the Deceased demanded the Defendant to refrain from blood transfusion in any circumstance, according to his religious belief, and on December 17, 2007, the Deceased notified the foregoing hospital through this letter that “The foregoing hospital is entirely prohibited from blood transfusion or blood ingredients blood transfusion in the treatment. Although it is known that the medical personnel in charge is in need of blood transfusion or blood ingredients during the treatment process, he has a firm mind that he does not essential blood transfusion even if he does not do so, this policy does not change even if he is in mind. I will prepare this medical and religious statement after examining and examining the issue related to it as a doctor’s witness. I will not ask for any damage caused by his own policy, and will not ask for any civil or criminal responsibility to the hospital(s) and medical personnel in charge.”

On December 19, 2007, before the date of the operation, Nonindicted 2, a medical doctor of the ○ University Hospital anesthesia, explained that large-scale transfusion is likely to occur during the course of the operation, and in such a case, there is a high possibility of long-term damage and death caused by the father without blood transfusion. On December 20, 207, immediately before the commencement of the operation, Nonindicted 2, a medical doctor of the ○ University Hospital anesthesia, explained that the deceased’s son and the deceased’s son was likely to undergo large-scale transfusion during the operation. However, on December 20, 207, the deceased still rejected the blood transfusion.

The Defendant, at the request of the Deceased, was in the process of surgery without blood transfusion due to an excessive surgery on the part of the deceased, caused a dystrophism and disorder and caused a situation where the blood transfusion is necessary without blood transfusion. In addition, Nonindicted 3 of the medical specialist outside the operation room, and asked Nonindicted 3 of the department outside the operation room, who explained the deceased’s condition to the deceased’s family members, and asked him whether the deceased would undergo the blood transfusion. The husband of the deceased was “novah’s Witness,” and thus, the deceased’s husband refused the blood transfusion, while the deceased’s children did not obtain a clear answer by mutual agreement among the family members, such as the deceased’s children strongly wishing to undergo the blood transfusion.

Therefore, the Defendant did not decide whether to give a blood transfusion and requested the Negotiation Committee to give prompt advice related to the instant case through medical professionals, but did not receive any particular reply.

In the meantime, the deceased’s blood transfusion continues to be suspended, and the Defendant moved the deceased to a middle-patient’s room. After that, the husband of the deceased consented to the blood transfusion, and all of his family members wished to undergo the blood transfusion. However, at the time, there is a possibility that the symptoms of the blood transfusion may deteriorate due to the occurrence of pulmonary depression and panscular disorder. In the hospital’s side, the deceased did not conduct the blood transfusion to the deceased, and the deceased died of the pulmonary father due to large quantity of blood transfusion.

B. Furthermore, according to the above facts as well as the records of this case, the court below determined that ① the deceased’s act of receiving another’s blood transfusion as a new witness was clearly rejected according to his religious belief, ② the deceased had long received a considerable pain due to aftermathical surgery, and had experienced considerable hindrance to daily life, ③ the deceased had received treatment at other three hospitals prior to the surgery. In light of the above facts, it was difficult to view that there was no significant blood transfusion surgery in the process of the operation, and that there was no danger in the process of the operation, and that the Defendant could not be viewed as being aware of the fact that there was a serious danger in the process of the operation, and that there was no possibility or danger in the process of the operation, and that the Defendant had received a new blood transfusion surgery in the process of receiving the deceased’s blood transfusion from the above hospital.

3. Examining the reasoning of the lower judgment, including the fact-finding and judgment of the lower court, in light of the records, the following conclusion is determined.

A. As seen earlier, even if the exercise of the right to self-determination is valid, it can be assessed that the patient has an equal value with his/her life only in exceptional cases where there are special circumstances. As such, among the reasoning of the judgment of the court below, where a situation directly conflicts with the patient’s general duty, i.e., the duty to seek the patient’s life based on the State’s duty to protect the right to self-determination, the part of the court below’s explanation that the exercise of the right

B. However, the above reasoning of the judgment below is acceptable as it corresponds to the legal principle on the doctor's duty of medical treatment in relation to the patient's exercise of the patient's right of self-determination as to the refusal of blood transfusion as seen earlier, and further, considering the following factors as a whole: (a) the explanation of the defendant's refusal of blood transfusion surgery and its danger before the operation; (b) the deceased's age and family relationship; (c) the deceased's circumstances leading up to this case's surgery; (d) the deceased's exercise of the right of self-determination as to refusal of blood transfusion; (e) the deceased's firm religious belief against the refusal of blood transfusion; (e) the deceased's serious decision-making through a letter of exemption from responsibility; and (e) the family's re-verification of the deceased's intention in the situation where it is necessary to obtain blood transfusion during the operation, it is difficult to compare the deceased's life and self-determination right; and

C. Therefore, we affirm the conclusion of the judgment of the court of first instance that the Defendant’s act of performing the instant artificial insemination surgery with respect to respect to the deceased’s right to self-determination based on one’s own professional conscience and without blood transfusion to the deceased, constitutes a case where there is no proof of a crime of occupational injury or death. We accept the allegation in the grounds of appeal that the judgment of the court below erred by misapprehending the legal principles as to the patient’s right to self-determination, which affected

4. Meanwhile, the prosecutor contests the judgment of the court below that there is insufficient evidence to acknowledge that the defendant was negligent in determining that the deceased could perform an operation by means of without blood transfusion through the supplementary appellate brief filed after the lapse of the appellate brief. However, this is a new ground of appeal that is different from the misunderstanding of legal principles as to the patient's right to self-determination, which is alleged in the grounds of appeal, and thus, it cannot be a legitimate ground of appeal, and it cannot be viewed as a ground for ex officio determination. Thus, whether the defendant was negligent in determining the possibility of operation by means of without blood transfusion cannot be subject to the judgment of

5. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)