The content of the duty of care to be borne by a doctor entrusted with cosmetic surgery, etc., and the degree of the duty of explanation required by a doctor where the cosmetic surgery intended to be performed can be partially realized of the specific result desired by the client.

A cosmetic surgery is conducted for the purpose of obtaining or increasing the external and aesthetic satisfaction of a patient. Since it is very weak in urgency or inevitable compared to other medical acts for the purpose of treating a disease, a doctor requested to perform the surgery, etc. is obliged to carefully select and recommend procedures, etc. to realize the specific result of the client's desire on the basis of his/her client's sufficient awareness of complaints about the external appearance and the specific result of the client's desire. In particular, a doctor who intends to perform the surgery is obliged to explain to the client whether he/she is subject to the client's adequate comparison of the need or risk of cosmetic surgery, not to mention the necessity, degree of difficulty, method of the surgery, what degree of the patient's appearance changes, anticipated risk, side effects, etc. by referring to the necessity, degree of the surgery, degree of risk and side effects, etc. of the patient's external appearance by explaining in detail so that the client can sufficiently understand the need or risk of the surgery. In particular, if a doctor intends to perform the surgery, he/she is not obligated to explain the client's specific result of cosmetic surgery.

Article 750 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and two others (Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm UBS, Attorneys Lee Ho-cheon, Counsel for defendant-appellant)

Seoul Central District Court Decision 201Na38423 decided September 21, 2012

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

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

1. As to the grounds of appeal on the surgery of eyebrow

A. cosmetic surgery is conducted for the purpose of obtaining or increasing the external and aesthetic satisfaction of a patient. Since there are very weak characteristics in urgency or inevitability compared to other medical acts for the purpose of treating a disease, a doctor entrusted with the procedure, etc. shall carefully select and recommend procedures, etc. which can realize the client's desired result on the basis of the client's own external appearance and the client's specific results on the basis of professional knowledge as follows. The client has a duty to explain the necessity, difficulty, method of the procedure, what degree of the patient's appearance changes through the procedure in question, the risk of occurrence, side effects, etc., so that the client can choose whether to undergo the procedure by sufficiently comparing the client's necessity or risk (see Supreme Court Decision 201Da8588, Apr. 25, 1994, 200).

나. 원심판결 이유 및 원심이 인용한 제1심판결 이유에 의하면, 원고 1은 2008. 5. 3.경 어머니인 원고 3과 함께 피고가 운영하는 성형외과에 찾아와 상담실장에게 주된 호소로 눈매교정을 통해 눈은 커지되 쌍꺼풀 라인을 좁게 줄여달라고 요청하였고, 이어 피고에게 ‘눈과 눈썹이 좁아서 화난 인상으로 느껴진다, 눈꼬리 기울기도 심하게 올라가 있다’고 호소한 사실, 이에 피고는 소위 눈썹거상술[이는 ‘눈썹 하 피부 절개를 시행하는 상안검성형술(Infrabrow Excision Blepharoplasty)’을 의미한다, 이하 ‘눈썹거상술’이라고 한다]과 추가적인 시술로서 지방제거술인 슬림리프트 레이저(Slimlift Laser, 이하 ‘슬림리프트’라 한다) 시술에 관하여 설명한 다음, 이에 대한 동의를 한 원고 1에게 양쪽 눈썹 부위에 눈썹거상술과 양쪽 볼 부위에 슬림리프트 시술을 한 사실, 눈썹거상술은 눈썹 밑에 있는 피부와 피부밑 연부조직, 안륜근육의 제거를 통하여 눈썹을 들어 올림으로써 상안검(윗눈꺼풀) 피부가 많아서 늘어져 있는 것을 완화하기 위한 시술법으로서, 눈의 피부가 처진 사람 중에 쌍꺼풀이 자연스럽지 못한 것 같은 눈꺼풀의 피부가 두꺼운 중, 장년층이나 쌍꺼풀이 있으면서 눈썹 문신이 있는 사람에게 가장 적합한 수술법이고, 눈썹과 윗눈꺼풀의 속눈썹 사이의 길이가 비교적 긴 경우로서 윗눈꺼풀의 피부가 심하게 늘어져 보기가 좋지 않은 경우에 효과적인데, 수술은 눈썹이 난 부위와 나지 않은 피부의 경계선으로 수술하게 되는 사실, 눈썹거상술은 노인성 상안검 피부 처짐 현상 등의 개선에 이용되는 시술법이기는 하나, 상안검이 두툼하고 부종 현상이 있는 젊은 여성에게도 드물지만 시행되는 시술법인 사실, 원고 1이 눈썹거상술을 시술받으면서 수술동의서에 서명하였는데, 그 동의서에는 ‘① 눈썹 밑 절개를 통한 눈썹올림수술은 우울해 보이거나 피곤해 보이는 것을 좋게 완화시키고, 눈을 커지게 하는 효과를 내기 위해 시행된다. ② 그렇더라도 모든 성형수술이 마찬가지겠지만 몇 가지 위험요소가 있는데, 감염, 상처가 덧나는 경우, 눈썹 위와 아래의 피부에 약간 융기된 듯한 부분이 초기에 생길 수 있다. ③ 눈썹주위에는 여러 가지 감각신경이 혼재해 있어 감각이 무디거나 찌릿찌릿한 느낌이 초반에 생기거나 지속될 수 있다. ④ 개인마다 피부와 피부 및 조직, 그리고 당겨지는 조직의 탄력성이 모두 다르므로 시간이 경과하면서 여러 가지 변수가 생길 수 있다’는 내용 등이 기재되어 있는 사실을 알 수 있다.

C. According to the above facts acknowledged by the court below, the main appeal that the plaintiff 1 talks with the defendant to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to grow through visual corrections. The main appeal that the plaintiff 1 talks with the defendant is to be able to be able to narrowly cut, to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to make up for the answer of the body. Meanwhile, according to the records, since the first instance court, the defendant argued that he recommended the

However, according to the fact-finding reply of the Korean Medical Association duly adopted by the court below, the eyebrow surgery is not a surgery that improves the eye of the eye, but a surgery that does not have an effect to narrow the double eyebrow, so there is sufficient room to view that the eyebrow surgery is not a surgery that can realize the above result that the plaintiff 1 wants, and therefore, the defendant should have explained about this point. However, even according to the facts acknowledged by the court below, the defendant provided an explanation to the plaintiff 1 that the eyebrow surgery would have an effect on the eye when the defendant performed the eyebrow surgery with the plaintiff 1, and there is no particular material to deem that the defendant notified it on the records.

Therefore, the defendant cannot be said to have fulfilled his duty to explain to the plaintiff 1.

D. Furthermore, even in light of the content of Plaintiff 1’s appeal, i.e., narrowing of both cosmetics, and the procedure without any explanation that the Defendant recommended and performed the procedure without any explanation, it may be deemed that the Defendant exceeded reasonable discretion in choosing the procedure as cosmetics surgery, even in light of the content of the Defendant’s solicitation and the motive for the procedure.

Therefore, the court below should have deliberated more on what kind of cosmetic surgery can be implemented according to the plaintiff 1's main appeal, whether only one procedure can be conducted, or whether a variety of sex procedures should be conducted concurrently, and then whether the defendant exceeded the reasonable discretion in selecting the eyebrow surgery.

E. Nevertheless, the court below determined otherwise that it is difficult for the defendant, who is a doctor, to be deemed to have exceeded reasonable discretion in determining the method of treatment in light of the motive for soliciting the eyebrow surgery and the contents of the eyebrow surgery, and determined that the defendant fulfilled his duty of explanation. In addition, the court below erred by misapprehending the legal principles on reasonable discretion in selecting the cosmetic surgery and on the doctor's duty of explanation, and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the ground of appeal on the shotfeing procedure

In light of the records, the court below is just in holding that the defendant's medical negligence, as alleged in the plaintiffs' assertion, is difficult to view that the defendant's operation of slots to plaintiff 1, based on its reasoning, is not erroneous in the misapprehension of legal principles as alleged in the grounds of appeal

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed (the entire judgment of the court below which maintained the judgment of the first instance court which dismissed all the plaintiffs' claims is reversed since the damages claim by the plaintiffs are not specified separately from the damages arising from the eyebrow surgery and the damages arising from slurging surgery) 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 Yang Chang-soo (Presiding Justice)