Where a prisoner of a correctional institution suffering from severe infection dies due to brain farming, the case holding that the State is liable for damages on the ground that the medical officer of the correctional institution was negligent in performing his/her duties.

Where a prisoner of a correctional institution suffering from severe infection dies from brain farming, the case holding that the State is liable to compensate for damage on the ground that the medical officer of the correctional institution was negligent in performing his/her duties.

Article 2 of the State Compensation Act, Article 750 of the Civil Act

Plaintiff 1 et al. (Law Firm Han-gu, Attorneys Lee Jae-hwan et al., Counsel for the plaintiff-appellant)

Korea

Seoul Central District Court Decision 2003Gadan294104 Delivered on February 1, 2005

may 3, 2006

1. The part of the judgment of the court of first instance against the plaintiffs, which orders payment below, shall be revoked.

The defendant shall pay to the plaintiffs the amount of KRW 14,432,274 as well as 5% per annum from January 6, 2003 to March 17, 2006, and 20% per annum from the next day to the day of full payment.

2. The plaintiffs' remaining appeals and the claims extended in the trial are dismissed, respectively.

3. The total costs of the lawsuit shall be five minutes, which shall be borne by the plaintiffs, and the remainder shall be borne by the defendants.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to each of the plaintiffs 72,519,266 won and the amount calculated by the ratio of 5% per annum from January 6, 2003 to November 23, 2005, and 20% per annum from the next day to the day of full payment (the plaintiff extended its claim in the trial).

1. Basic facts

A. The number, guard and medical history of Nonparty 1

(1) Around February 27, 2001, Nonparty 1 was detained and detained in Seongdong-gu Prison, and was transferred to the Youngdong Prison on May 28, 2001. Around July 10, 2001, Nonparty 1 was sentenced to four years of imprisonment due to a violation of the Punishment of Violences, etc. Act, and the said sentence became final and conclusive around that time (the scheduled date of the completion of the term of punishment February 25, 2005).

(2) On the other hand, Nonparty 1 suffered from heavy salt before being detained and was found to have a defect in the hearing power, but used two copies each time the head applied without appeal for the above symptoms to the inmate or prison staff.

B. Nonparty 1’s appeal of ear and head

(1) Around December 5, 2002, Non-party 1 moved to eight rooms of the 6th lower-class ward. From December 2002, Non-party 1 began to use the cell with two duplicate drugs, which read, “the head is the same as the head is changed.” from December 2002 to the same ward.

(2) On December 22, 2002, Non-party 1, 2002, she was given a prescription for one-day hepatitis from the prison’s medical department, and on December 23, 2002, upon receiving a medical examination from the non-party 2, who is a medical officer of a correctional institution, the non-party 1 was diagnosed as a serious hepatitis and head, and was subject to a three-day leave of absence as well as a three-day leave of absence, after being diagnosed by the non-party 2, who is a medical officer of a correctional institution.

(3) From December 25, 2002, Nonparty 1 increased the number of hours that he was able to take in a ward in the occupation room, and Nonparty 1 told that “the head is too dead. The same shall apply to the brain spawn.” to the same ward, and the number of spawning double medicine increased to 1 to 2 hours.

(c) Accommodation and aggravation of symptoms;

(1) Around 04:00 on December 30, 2002, Nonparty 1: (a) went to work for a prisoner in the same day on and around 07:10 on the same day; (b) was administered with the blood pressure of 190/100mm Hg; and (c) was reduced by blood pressure of 145/90mm and Hg around 07:20 on the same day, Nonparty 1 was in charge of an antibiotic medication with respect to middle-aged infection and was under a medical control for two copies, and was under a medical control and observation for one day during the recess from Nonparty 2; and (d) was accepted in the 7nd lower-class room, 7nd-class, C. on the same day.

(2) However, after being detained in Byungdong, Non-party 1 continued to have his head as a day, she was frighting a day, and was unable to walk well, such as he was frighting to a toilet with his body, due to his failure to properly hold his body, he was unable to walk well, and he was snicking to a bee and flow out on the bee.

(3) In addition, when Nonparty 1 intending to drink a boomed, he had to kill by causing a booming of old soil. At first, Nonparty 1 she saw a boom with a boomer, and she did not drink it on January 2, 2003, and she she was frighted with a frighting injection since January 3, 2003, and she was killed by causing a frighter’s death.

(d)the measure taken by Nonparty 2 who is a prison officer;

(1) On December 31, 2002, Nonparty 2, while examining Nonparty 1, told Nonparty 1 that he was suffering from heavy hepatitis before being recovered, and determined that he was in need of diagnosis by a medical specialist after prescribing 2-day antibiotics and 3-day he was in need of diagnosis, and determined that he was in need of diagnosis by a medical specialist.

(2) On January 2, 2003, Nonparty 2 administered a blood pressure of Nonparty 1’s blood pressure of 160/120mm Hg in 160/120mm in 160 and 7-day blood pressure and aing house, and additionally prescribed 2-day anti-biotics.

(3) On January 3, 2003, Non-party 2 had Non-party 1 undergo a medical examination at the location (the name of the hospital omitted) in Seoul (the name of the hospital omitted) operated by Non-party 3, who is a medical specialist, and Non-party 3 determined that the non-party 3 was merely heavy salt and determined as “hyn (hyn) and the skin is in a complete state, and it is necessary to reduce the performance. The treatment of anti-biotic drugs and anti-biotic drugs are considered to require treatment. The treatment and anti-biotic drugs are considered to require treatment again after the three week medical treatment, and it is more effective to treat them in the medical room, and it was prescribed for approximately 21 days and for 7 days for anti-biotic drugs.”

E. However, Nonparty 1 was administered only internal medicine and antibiotic drugs prescribed by Nonparty 3 with no physical condition despite being transmitted to the outside despite being transmitted to the outside. On January 6, 2003, Nonparty 1 was sent to the emergency room of the old-ro heart hospital in the vicinity and caused a difficulty in pulmonary treatment as a result of a chromatic chromatic marization and a difficulty in pulmonary treatment. On the same day, Nonparty 1 died while being under emergency measures at the above hospital around 16:40 on the same day (hereinafter “instant accident”).

F. The result of the autopsy of Nonparty 1 of the National Institute of Scientific Investigation is as follows:

(1) In full view of the fact that Non-Party 1’s brain brain x 3.5cm 】 3.5cm 】 1.2cm x 1.2cm in size and the fact that the brain is high as a side in size, a private person (private person) is feeded as brain farming ( brain farming).

(2)The cause of the outbreak is likely to have been infected by blood transfusions from heavy or nearby wards in light of the fact that it cannot be seen as a primary disease at the heart or waste and that there was a serious infections.

(3) In light of the fact that brain farming is a disease that can be treated by which the inevitable death rate of less than 20% can be lowered due to surgery, antibiotical agents, etc., there may be problems such as neglect of observation by the person in charge, negligence by medical professionals, etc. regarding the death of Nonparty 1.

G. Meanwhile, on February 21, 2002, Nonparty 1 left the Plaintiffs with his wife (her wife) and divorced from Nonparty 4. As Nonparty 1 died of the instant accident, Nonparty 1 jointly succeeded to Nonparty 1’s property.

(h) Relevant medical knowledge;

(1) The brain spawn ( brain spawn) can be caused by infections with adjacent parts such as heavy spawnosis, etc., which are the national spawn typosis caused by germs, and is accompanied by brain spawn (cerebral spawn) together with the effect of occupying the space. As such, brain spawn patients appeal the national spawnic spawnosis by the overall symptoms associated with the rise of brain pressure and infected parts.

(2) The symptoms of brain farming have the 4th clinical aspect. The 1st phase shows only two pains and the fluence degree, and the 2nd phase continues to be several weeks in which there are no special symptoms. The 3nd phase is a growing phase in which farming is formed, accompanied by a heat, two pains, food disorder, fluence, and physical team according to the location of the fluence due to national bruptism, along with the fluence, and the 4nd phase is killed due to a sudden progress of clinical disease.

(3) The diagnosis of brain farming is important along with a thorough examination of the causes and symptoms, and in cases where the size of brain farming is smaller than 2.5 cm (2.5 cm) the method of treatment requires an operation, such as recovery of brain-resistant smoking and brain farming, if the method of treatment is smaller than 2.3cm (2.5 cm) and the size of the brain farming is larger (2.5 cm and above).

(4) The rate of death by brain farming has been significantly decreased by less than 10% due to the development of a variety of antibiotics, cerebral tension surgery, etc. The most important thing after the surgery is how much the cerebral negos were serious. In the event that consciousness was unknown, 0.21% if there is symptoms of cerebral legos, 60% if there are symptoms of cerebral legoris, and 89% in the case of a mixed status.

[Grounds for recognition] Part of Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 6 (including each number), part of non-party 2's testimony of the witness of the court of the first instance, head of the court of the first instance, (name omitted of the hospital), doctor's association of the Korean medical doctor's association, and the purport of the whole pleadings as a result of the fact-finding inquiry

[Evidence of the ship] The other parts of the evidence Nos. 4 and 5, and the non-party 2's testimony of the witness of the trial court

2. Occurrence of liability for damages;

A. Grounds for liability

The medical officer of a correctional institution has a duty of care to take the best measures required to prevent risks depending on the patient's specific symptoms or circumstances in light of the nature of the work of managing the patient's life, body, and health when providing medical treatment to the inmate of the correctional institution (see Supreme Court Decision 2004Da65121, Mar. 10, 2005, etc.).

이 사건에서 보건대, 앞서의 인정 사실에 의하여 알 수 있는 다음과 같은 사정, 즉 뇌농양은 그 진행과정에서 시기를 놓치지 않고 수술 및 항생제 등 적절한 치료를 함으로써 치사율을 20% 이하로 낮출 수 있는 치료가능한 질병이기 때문에 주기적인 관찰과 진단을 통하여 조기에 발견하는 것이 무엇보다 중요하고 그 치료를 지체할 경우에는 뇌실 내로 농양이 터져 사망에 이르게 될 수도 있는 점, 뇌농양은 비록 1단계 및 2단계에서는 두통, 무력감 정도의 증세 외에 특별한 증상이 없지만, 농양이 형성되어 커지는 3단계에서는 발열, 두통, 의식장애, 구토와 함께 국소증상으로 병변의 위치에 따라 시야장애, 실어증, 운동실조 등 뇌농양으로 의심할 수 있는 증상을 동반하게 되는 점, 소외 1은 2002. 12. 중순경부터 두통이 심해지다가 2002. 12. 23. 피고 산하 영등포교도소 의무관인 외과전문의 소외 2에게 귀와 머리가 아프다고 증상을 호소하여 중이염 및 두통으로 진단받아 중이염약을 복용하던 중 2002. 12. 30. 04:00경 갑자기 구토 증세를 일으켜 같은 날 07:10경 동료 재소자에 업혀 의무과로 가게 되었고, 혈압이 190/100㎜Hg에 이르는 등 문제가 있자 소외 2로부터 관찰을 요한다는 진단을 받고 같은 날 의무과 병동에 수용될 정도로 증세가 악화된 점, 더욱이 소외 1은 병동에 수용된 후에도 계속 머리가 아프고 어지럽다면서 하루 종일 누워만 있었고, 몸을 제대로 가누지 못하여 동료 재소자들의 부축을 받아 화장실에 가는 등 잘 걷지 못하였으며, 자고 일어나면 베개에 누런 고름이 흘러 냄새가 심하게 났고, 밥을 먹으려고 하면 구토 증세를 일으켜 죽을 먹을 수밖에 없는 등 단순히 중이염 및 두통 환자라고 보기는 어려운 증상을 보인 점, 그런데 소외 2는 본인이 관찰을 요한다는 진단을 한 바와 같이 소외 1의 치료경과에 대하여 계속 관심을 가지고 소외 1의 동태를 살핌으로써 소외 1의 증세악화에 따른 조치에 미흡함이 없도록 주의를 기울였어야 할 것임에도, 소외 1이 병동 수용 중에 보인 위와 같은 증상들(두통, 구토, 운동실조 등)을 제대로 파악하지 못한 채 혈압약을 추가한 것 외에는 중이염약만을 계속 처방하였을 뿐이고, 소외 1로 하여금 이비인후과 전문의인 소외 3에게 진찰을 받게 하면서도 소외 1의 위와 같은 증상들을 소외 3에게 제대로 전달하지 못한 점, 또한 소외 2는 소외 1이 외부후송 진료 이후 상태가 호전되지 않았음에도 별다른 주의를 기울이지 아니하고 소외 3이 처방해 준 내복약과 항생제 주사만을 계속 투여한 점, 소외 1에 대한 사체부검 결과 소외 1의 소뇌 우측에서 3.5㎝ × 3.5㎝ × 1.2㎝ 크기의 농양(농양) 및 이로 인한 고도의 뇌 부종상(부종상)을 보였는데, 위와 같은 크기의 농양은 항생제만을 투여하는 내과적 치료로는 부족하고 뇌정위적 흡인·뇌농양의 적출 등 수술적 치료가 요구될 정도(2.5～3㎝ 이상)에 이르는 점에 비추어, 비록 소외 1이 자신의 증세를 적극적으로 호소하지 않았다 하더라도 소외 2가 조금만 더 주의를 기울였다면 외부적으로 뇌농양을 의심할 수 있는 증상을 발견할 수 있었을 것으로 추인되는 점, 교도소에 수용되어 있는 자에 대한 치료에 관하여는 수용자 자신의 의학적 지식의 부족, 수용으로 인한 행동의 제약과 정신적·심리적 불안정 등으로 스스로 적절한 판단을 내리기 어려운 사정을 고려해야 하는 점 등에 비추어 보면, 피고 산하 영등포교도소의 의무관인 소외 2가 교도소 수용자인 소외 1에 대한 진찰·치료 등의 의료행위를 함에 있어 자칫 사망으로 이어질 수 있는 위험한 증상의 조기 발견 및 이에 대한 적절한 치료 등 위험을 방지하기 위하여 요구되는 최선의 조치를 행하여야 할 주의의무가 있음에도 그 의무를 다하지 아니한 과실로 이 사건 사고가 발생하였다 할 것이므로, 피고는 그 소속공무원인 소외 2의 위와 같은 직무집행상의 과실로 발생한 이 사건 사고로 인하여 원고들이 입은 손해를 배상할 책임이 있다고 할 것이다.

B. Limitation on liability

However, in full view of the above facts and the purport of the oral argument as a whole, Nonparty 1 did not disclose his symptoms in order to avoid the release from the ward inmates who were employed in the prison, and even after being detained on February 27, 2001, Nonparty 1 did not actively appeal to the non-party 2 and the non-party 3, who is the non-party 2 and the non-party 3, who is the non-party 2 and the non-party 1, who is the non-party 2, even after being detained, for the examination of his ability to receive the above symptoms at the time of being diagnosed, and used two pains each time when the head fests, without the appeal to the above symptoms. On December 5, 2002, when the non-party 1 moved to the eight room rooms of the 6nd and then complained of the pain, he did not appeal to the non-party 2 and the non-party 1, who is the non-party 2, the non-party 2, and the non-party 3, the medical expert.

3. Scope of damages.

(a) Actual wages;

The loss of lost wages lost by the deceased non-party 1 due to the accident in this case is 94,322,741 won calculated at the present price at the time of death of the deceased according to the discount method that deducts intermediary interest at the rate of 5/12 per month based on the facts of recognition and evaluation as follows (1).

[Grounds for recognition] Evidence No. 2, Evidence No. 5-1, and 2

(1) Facts and evaluation of the recognition;

(a) Gender: Male;

Date of birth: October 15, 1959

Age: 43 years of age 2 months;

Name of rental: 32.05

(B) Financial assessment of operating ability: The deceased non-party 1 appears to have been able to engage in daily work every 2th day of February 25, 2005, which is the scheduled date of expiration of the term of punishment, until he reaches the age of 60. The daily wage of an ordinary urban worker is 52,585 won from February 25, 2005 to April 30, 2005, and 53,090 won from the next day to October 14, 2019 (the plaintiffs asserted that daily income is claimed based on the daily wage of an ordinary urban worker from February 25, 2005 to February 25, 2005, but the above 53,090 won was investigated by the plaintiffs on May 25, 2005, and thus, it does not apply only to the above part of the allegation that the daily wage of an ordinary urban worker exceeds the scope of 51 days from May 1, 2005).

(C) Cost of living of the deceased non-party 1: 1/3 of the deceased's income.

(2) Total san (in order to prevent excess compensation, less than a month shall be calculated by including the amount of monthly income prior to the deduction of interim interest and less than the last month and less than KRW 10 shall be discarded; hereinafter the same shall apply).

(1) Two months from February 25, 2005 to April 30, 2005

52,585 won ¡¿ 22 days ¡¿ 2/3 ¡¿ (26.4313 - 24.6369) = 1,383,925 won

(2) From May 1, 2005 to October 14, 2019, 173 months.

53,090 won ¡¿ 22 days ¡¿ 2/3 ¡¿ (145.7897 - 26.4313) = 92,938,816 won

(3) Total amount: 94,322,741 won (=1,383,925 won + 92,938,816 won)

B. Limitation on liability

(1) The defendant's liability ratio: 20%

(2) mountain: 18,864,548 won (=94,322,741 won x 20%)

(c) Compensation money;

(1) Reasons for consideration: The background and result of the instant accident; the age, family relationship, and other various circumstances shown in the argument of the deceased non-party 1 and the plaintiffs;

(2) Amount of recognition: the deceased non-party 1.5 million won, each of the plaintiffs 2.5 million won

(d) Inheritance relations; and

(1) Amount of inheritance: 18,864,548 won as property damage + 5 million won = 23,864,548 won as property damage

(2) Shares of inheritance: each of the plaintiffs 1/2

(3) Inheritance amount: Each inheritance by the plaintiffs (=23,864,548 won x 1/2)

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiffs 14,432,274 won each (the share of inheritance 11,932,274 won + consolation money 2.5 million won) and damages for delay calculated at the rate of 5% per annum under the Civil Act from January 6, 2003, which is the date of occurrence of the accident of this case until March 17, 2006, and 20% per annum under the "Special Act on Promotion, etc. of Legal Proceedings" from the next day to the date of full payment. Thus, the plaintiffs' claims are accepted within the above scope of recognition, and the remaining claims are dismissed for reasons. Since the conclusion of the judgment of the first instance is partially unfair, the part of the judgment against the plaintiffs falling under the above part of the judgment of the first instance is revoked, and the defendant is ordered to pay the above recognized amount to the defendant and the plaintiffs' remaining claims are dismissed as it is without merit and it is so decided as per Disposition.

Judges Han-ho (Presiding Judge)