2011 Highest 2496 Occupational Death, etc.

1. A;

2. B

The highest significance, the scarcity, and the public trial

Law Firm C (For all the defendants)

Attorney in charge D

August 14, 2013

Defendant A shall be punished by imprisonment without prison labor for ten months. Litigation costs shall be borne by Defendant A. Defendant B shall be acquitted.

Criminal facts (Defendant A)

The defendant is the director of the E Hospital surgery and the second division.

On August 12, 2010, at around 07:15, the Defendant, along with B, sustained a traffic accident by an Orala, which the victim F (n, 24 years of age) was driven by H in the crosswalk near the above hospital, and was transported to the above hospital emergency room, after being transmitted to the above hospital emergency room. At around 08:50 on the same day, the Defendant, as an emergency operation, performed a general anesthesia or a tent (hereinafter referred to as "catal, etc.").

However, the victims at the time were in an imminent situation where the physical conditions are very unstable due to the rise of brain pressure, such as being fixed in the open space of both dynamics, and the procedure for lowering brain pressure was conducted without delay by performing meculing, etc. Meanwhile, in cases where an engine saving is inevitable for securing the mechanism and anesthesia prior to the procedure for the above meculing, etc., there is a concern that the meculing may occur due to major blood ties, such as a meculism, mipathal, corrected beer, and beer. Therefore, in such a case, a doctor performing the above emergency operation has a duty of care to minimize the meculic, etc. planned by minimizing the meculic, etc., so as not to cause any trouble in the meculing, etc.

Nevertheless, while the Defendant attempted to add a brupt with B, but failed to find the sexual language, and failed to do so, the Defendant neglected the above duty of care in the process of attempting to add the brush and the tubes, and suffered large amounts of brupting, thereby causing damage to the brupty structure of the brupt.

The Defendant, by negligence in breach of the duty of care as seen above, delayed the operation of 40 minutes due to dystrophism caused by mass transfusion, and started 09:30 on the same day only after the Defendant went through around 09:30 on the same day. On the same day, the Defendant caused the death of the victim due to a dystro management merger that occurred during the anesthesia process, while the victim was damaged by dystrophism.

(2) The summary of the evidence (the defendant A) except for the acquittal of the defendant on the grounds as shown below. (3)

1. Each prosecutor's protocol of examination of the accused and the B;

1. Statement of the written autopsy and appraisal;

1. Recommendation of the response to the request for appraisal;

1. Each statement of reply of each expert advisor;

Application of Acts and subordinate statutes (Defendant A)

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 258 of the Criminal Act; Selection of imprisonment without prison labor

1. Bearing litigation costs;

The summary of the facts charged against the defendant under Article 186 (1) of the Criminal Procedure Act (the defendant B) is that the defendant's negligence, such as the above facts charged, caused the death of the victim by the occupational negligence. However, as seen below in the determination of the following issues, there is no evidence to prove that the defendant caused mass transfusion to the victim due to occupational negligence during the process of securing the implements. Accordingly, the part against the defendant constitutes a case where there is no proof of a crime, and thus, the defendant is acquitted pursuant to the latter part of Article

Judgment on the issue (the defendants)

1. Details of "occupational negligence" under the revised facts charged;

The facts charged by the written application for changes in indictment as of January 2, 2013 indicate occupational negligence in the instant case with the purport that, under the premise of "the situation where an organ renovation is likely to cause blood transfusions in the vicinity of the baselines" when an organ renovation is implemented for securing the Do, the doctor in charge has a duty of care to minimize blood transfusions and to secure it promptly. The Defendants caused the death of the victim by causing mass transfusions in breach of such duty of care.

On the other hand, the above revised facts charged require a considerable time to prepare for the oral or astronomical surgery after the victim's arrival in the emergency room, the fact that the victim attempted to perform the oral marbation in the process of securing the Do, the fact that the victim did not choose any other method of securing the oral marbation after the failure of the institutional marbation, etc. and did not deal with the defendants' violation of the duty of care.

2. Issues of the instant case

The Defendants generally recognize that the Defendants were in an emergency requiring prompt countermeasures at the time, that the securing of the machinery is the premise for the emergency operation, and that the blood transfusion is sufficiently generated in the process of the engine renovation, and even based on other data, these circumstances are clearly recognized.

Therefore, the issues of this case are ① under the above circumstances: (i) whether the doctor in charge has a duty of care to minimize the blood transfusion in the process of securing the patient’s airway; (ii) if there is such a duty of care, whether the Defendants breached such duty of care; and (iii) whether there exists a causal relationship between the breach of such duty of care and the result

3. Whether a person has a duty of care to minimize blood transfusion in the course of securing the airway;

According to the statement of the expert response as of August 24, 2012, etc., it is recognized that the blood transfusion is one of the mergers that may easily occur in the process of an organ saving, and therefore, it is not a negligence in the process of a conditionless treatment on the part of the doctor. However, the term "complication" refers to other illness or symptoms that may arise in the process of a (a disease or disease), and is a neutral expression as to whether the operator's negligence has been involved in the process of a procedure. Therefore, it is evident that it is impossible to readily conclude that it has been caused by merger in the process of a procedure, but it is not clear that the operator's negligence has not been necessarily involved in the process of the procedure, and the existence of negligence on each individual merger document must be individually examined.

In addition, unlike the issue of whether the ‘blood' occurred in itself as a result of the fact that there is a negligence of the operator of the surgery, in light of the fact that there is a possibility that the ‘blood' may occur in the process of the alteration of the body, the organ saving alone may be difficult, and if it is mass blood transfusion, the surgery itself may be delayed in the course of the blood transfusion, a doctor in charge of the surgery shall have the duty of care to prevent the occurrence of the transfusion as much as possible.

3. Whether he/she breaches the duty of care;

A. Whether a person has breached his/her duty of care with respect to the failure of an institutional insertion;

At present, there is no evidence that blood transfusion may easily appear in the process of inserting the organ in the process of inserting the body. However, according to the records, etc. of the Korea Medical Association's request for appraisal by the Korea Medical Association (No. 1 title No. 3 of investigation records), the fact that if normal autopsy structure is damaged due to repeated insertion of the body, it is recognized that the organ is highly likely not successful if the normal autopsy structure is damaged (the answer to paragraph 2 of the quality). In such a case, there is also a circumstance that the damaged autopsy structure could raise the possibility of blood transfusion in the process of the organ saving.

However, in this case, there is only evidence that the Defendants attempted to insert the Defendants into the engine three times prior to the implementation of the routing of the engine, and there was no evidence that there was a violation of the duty of care to the Defendants in relation to the occurrence of mass transfusion to the victims during the process of inserting the routing of the routing of the engine. No evidence was submitted as to the fact that the routing of the engine in the three times was excessive to the extent that the rout of the routing of the engine was detrimental to the routing structure or that the routing structure was damaged in the process (in the response to Paragraph 2 of the above routing of the routing of the inquiry request, the

(b)the existence of a breach of duty of care in the course of performing an institutional care.

Each of the above evidences presented by the Defendants, in particular, according to the statement of each protocol of examination of suspect suspect against the Defendants, and the statement of the autopsy report, each of the following facts can be acknowledged: (a) Defendant A performed cryptive surgery; (b) was exposed to the victim’s engine; (c) was inserted into the cryptive engine; (d) Defendant B requested that the crypt be inserted once again into the cryptive engine; (e) Defendant A again put in the cryptive engine; (e) the instant cryptive engine; and (e) the instant cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryptive cryp.

Therefore, Defendant A violated the duty of care as seen earlier.

However, prior to the stage in which Defendant B’s suspect interrogation protocol was inserted into the prosecutor’s protocol of suspect interrogation as to Defendant B, it is not sufficient to recognize that Defendant B was involved in the implementation of Defendant A’s agency opening, or that Defendant A’s office opening process could prevent the breach of his duty of care, and there is no other evidence to acknowledge that Defendant B violated the duty of care in the process of performing a decentralization at the time of performing a decentralization medical act.

4. Existence of causation

According to each evidence revealed earlier, such as the statement in the expert advisor reply written on August 8, 2012, 201, the possibility of death is more than 10% if the operation was carried out immediately on the same day at around 08:50, and in the case of the victim, the victim could not perform the appropriate operation at a prompt time due to delayed surgery due to excessive surgery during the process of performing the climatic surgery, etc., and the fact that the victim died can be acknowledged. In other words, even if the measures taken during the process of each procedure and the process of blooding unexpected blood, even if it was performed within an appropriate time, there was considerable possibility of preventing the death of the victim as soon as possible if the blood transfusion did not occur due to negligence in the process of performing the climatic surgery. Accordingly, there is proximate causal relation between Defendant A’s occupational negligence and the result of the victim’s death.

5. Conclusion

Thus, the defendant A shall be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, since there is no evidence of conviction within the above recognition scope and there is no evidence of finding the remainder (the negligence in the process of inserting the inside of the agency). However, as long as the defendant A pronounced guilty on the remainder of the facts within the same scope, the defendant B shall not be acquitted in the disposition, and since there is no evidence of recognizing the fact of violation of the defendant's duty of care, the defendant B shall be acquitted pursuant to the latter part of

The reason for sentencing (Defendant A) is that the Defendant is sentenced to imprisonment without prison labor in consideration of the following: (a) the Defendant has no criminal history other than a fine for a long time; (b) the Defendant has made his best efforts to treat the victim; (c) the Defendant has not made his best efforts to do so; (d) the Defendant has caused the instant mistake; (c) the victim has died; (d) the victim has a serious consequence; (d) the victim has been dead; and (e) the victim’s death has a significant effect on the victim’s fault; and (e) there was no data submitted that the Defendant has recovered from the victim’s bereaved family or was insured for the recovery of damage (However, given that there is no possibility of submitting data on recovery of damage or purchase of insurance; (d) there is a possibility of submitting data on insurance; (e) the fact that the Defendant is a negligent crime; and (e) the fact that

Judges Choi Du-ho