Standard for permitting discontinuance of life-sustaining treatment / Where a patient enters the irrecoverable stage of death without disclosing his/her intention to refuse or discontinue life-sustaining treatment after concluding a medical contract, and the judgment ordering discontinuance of life-sustaining treatment becomes final and conclusive, whether the existing medical contract continues to exist within the remaining range except for life-sustaining treatment ordered to be discontinued in the text of the judgment (affirmative in principle)

Medical treatment in a case where there is no possibility for a patient to recover consciousness, and where it is evident that a patient may have died within a short time in light of the patient’s physical condition (hereinafter “unreparable stage of death”) is not for the purpose of protecting the disease, but for the purpose of maintaining the present state only when he/she has given up the face of the disease. Thus, the possibility of suspension of medical treatment should be determined on a different basis from the case where the treatment does not come up. Therefore, in a case where, after the irrecoverable stage of death, a patient is deemed to exercise his/her right to self-determination on the basis of dignity and value as a human being and the right to pursue happiness, discontinuance of life-sustaining treatment may be allowed, barring special circumstances.

Meanwhile, in cases where the patient entered the irrecoverable stage of death without disclosing his/her intention to refuse or discontinue life-sustaining treatment to a medical person after concluding a medical contract with a medical person, and the patient directly files a lawsuit seeking discontinuance of life-sustaining treatment with a court, barring special circumstances, life-sustaining treatment ordering discontinuance of life-sustaining treatment is no longer permitted in the text of the judgment. However, existing medical contract between the patient and the medical person continues to exist within the remainder except for life-sustaining treatment ordering discontinuance of life-sustaining treatment in the text of the judgment.

Article 10 of the Constitution, Articles 680, 686, and 689(1) of the Civil Act

Supreme Court en banc Decision 2009Da17417 Decided May 21, 2009 (Gong2009Sang, 849)

School of Annual Generation (Attorney Final White-gu et al., Counsel for the defendant-appellant)

See Attached List of Defendant (Attorney Shin Jae-ho et al., Counsel for the defendant-appellant)

Seoul Western District Court Decision 2014Na2536 decided January 23, 2015

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

The grounds of appeal are examined.

1. Where a patient has no possibility of recovery from consciousness, and where it is evident that he/she can have died within a short time in light of the patient’s physical condition (hereinafter “unreparable stage of death”), the medical treatment (hereinafter “reparable treatment”) is merely for the purpose of protecting the disease that is the cause of the disease, but merely for the purpose of maintaining the present state when he/she has renounced the de facto state of the disease. Therefore, the possibility of allowing suspension of medical treatment should be determined on a different basis from the case where the patient has not reached the irrecoverable stage of death, and where it is recognized that the patient exercises his/her right to self-determination on the basis of the patient’s dignity, value, and the right to pursue happiness, barring special circumstances (see Supreme Court en banc Decision 2009Da17417, May 21, 2009).

Meanwhile, in cases where the patient entered the irrecoverable stage of death without disclosing the patient’s intention to refuse or discontinue life-sustaining treatment (hereinafter “pre-medical instruction”) with the medical personnel, and the patient directly files a lawsuit seeking discontinuance of life-sustaining treatment with the court, barring special circumstances, life-sustaining treatment ordering discontinuance of life-sustaining treatment is no longer permitted upon the final judgment ordering discontinuance of life-sustaining treatment. However, existing medical contract between the patient and the medical personnel continues to exist within the remainder of life-sustaining treatment excluding life-sustaining treatment ordering discontinuance in the final judgment.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On February 16, 2008, Nonparty 1 entered into a medical contract with the Plaintiff (hereinafter “instant medical contract”) and hospitalized in the part of the Plaintiff hospital. In this case, Defendant 4, as the guardian of Nonparty 1, and Defendant 5, as the joint and several surety, agreed to pay the Plaintiff medical expenses under the instant medical contract jointly and severally with Nonparty 1.

B. On February 18, 2008, in order for Nonparty 1 to verify the outbreak of waste cancer, the Plaintiff’s hospital was undergoing a cardiopulmonary tissue test using the engine diameter, excessive explosion, etc. The Plaintiff hospital’s medical team implemented heart organs, etc., thereby restoring heart function and attaching artificial absorption devices. However, Nonparty 1 was continuously placed in a vegetable state due to low oxygen brain damage. Nonparty 1 was subject to preserved treatment, such as antibiotic medication, artificial nutrition supply, and water supply, etc., by attaching an artificial absorption device at the Plaintiff hospital’s middle-patient.

C. On June 2, 2008, the non-party 1 (the non-party 4 appointed as a special representative and proceeded with the lawsuit) filed a lawsuit against the plaintiff for removal, etc. of life-sustaining treatment equipment (the Seoul Western District Court 2008Gahap6977) with the defendant 1, 2, 3, and 4, who is his child. The above court dismissed the claims of the non-party 1, 2, 3, and 4 on November 28, 2008, and only accepted the claims of the non-party 1, and "the defendant removal of the artificial absorption against the non-party 1" (hereinafter "the judgment suspending the treatment of life-sustaining treatment"). The plaintiff filed an appeal against this, but the judgment dismissing the appeal on February 10, 2009 (Seoul High Court 2008Na116869), but the plaintiff re-appealed to this judgment by the Supreme Court en banc Decision 2015Da17971, May 17, 2009).

D. Around 10:30 on June 23, 2009, the Plaintiff hospital’s medical staff removed an artificial smoking machine attached to Nonparty 1 according to the judgment of discontinuance of life-sustaining treatment, but Nonparty 1, even after the removal, died on January 10, 2010, and his heir died on the part of Nonparty 1, Defendant 2, Defendant 3, and Defendant 4.

E. From February 16, 2008, the starting date of treatment under the instant medical contract, to January 10, 2010, the total medical expenses were KRW 87,119,853, and the unpaid medical expenses were KRW 86,969,850, and the unpaid medical expenses were KRW 86,969,850, which includes the cost of maintaining artificial smoking machines from June 2, 2008, which was brought a lawsuit to discontinue life-sustaining treatment until May 21, 2009, which became final and conclusive after the judgment to discontinue life-sustaining treatment from June 21, 2009, and Defendant 4’s request on June 23, 2009, including KRW 66,690,00,000, 100, 5,336,032, from June 23, 209 to the time when Nonparty 1 died.

3. Examining the above facts in light of the legal principles as seen earlier, Nonparty 1 entered the irrecoverable stage of death when concluding the instant medical contract with the Plaintiff and undergoing a pulmonary tissue test using the engine diameter, and without disclosing prior medical instruction. Nonparty 1, Defendant 1, Defendant 2, Defendant 3, and Defendant 4 filed a lawsuit to discontinue life-sustaining treatment against the Plaintiff and received a judgment to discontinue life-sustaining treatment, and the judgment became final and conclusive by the Supreme Court, the judgment was dismissed. Accordingly, it is not allowed to attach an artificial smoking machine ordering discontinuance in the judgment to discontinue life-sustaining treatment. However, the instant medical contract remains effective after the judgment to discontinue life-sustaining treatment became final and conclusive.

Therefore, the joint and several sureties of the instant medical contract or the Defendants, who are Nonparty 1’s inheritors, are obligated to pay not only the expenses for maintaining artificial respiratory equipment from June 2, 2008 when the lawsuit for suspending life-sustaining treatment was filed against the Plaintiff in accordance with the instant medical contract, to May 21, 2009 when the judgment to discontinue life-sustaining treatment became final and conclusive, but also the unpaid medical expenses, including the higher-class hospital usage fees incurred until the death of Nonparty 1 after Nonparty 1 was transferred to a higher hospital.

The decision of the court below that made the same conclusion is just. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to medical treatment expenses after the termination of medical contract, the method and time and scope of validity, the interpretation of expression of intent, the violation of the right to decide on the whole part of the multi-person room, and

4. Conclusion

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.

[Attachment] List of Defendants: omitted

Justices Lee Ki-taik (Presiding Justice)