Plaintiff (Attorney Shin-ho et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon Byung-nam et al., Counsel for the defendant-appellant)

Seoul Eastern District Court Decision 2009Kahap5405 Decided December 24, 2009

December 23, 2010

1. The judgment of the first instance court is modified according to the expansion of the purport of the claim in the plaintiff's trial as follows.

A. The defendant shall pay to the plaintiff 70 million won with 5% interest per annum from April 3, 2006 to February 24, 201, and 20% interest per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. 15% of the total costs of litigation shall be borne by the Defendant, and the remainder by the Plaintiff, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 602,676,695 won, and 5% per annum from April 3, 2006 to the date of a final judgment, and 20% per annum from the next day to the date of full payment (the plaintiff extended consolation money from KRW 30 million to KRW 120 million among the claims in the trial).

2. Purport of appeal

A. The plaintiff shall revoke the part of the judgment of the court of first instance against the plaintiff corresponding to the amount ordered to be additionally paid under the following. The defendant shall pay to the plaintiff 30 million won with 5% interest per annum from April 3, 2006 to the ruling of the court of first instance, and 20% interest per annum from the next day to the date of full payment.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

1. Basic facts

(a) Status of the parties and the process of implementing the sound distribution and the partial implementation of spawnism;

On March 27, 2006, the Plaintiff consulted the Defendant, who is a doctor establishing and operating ○○○ Burinology (hereinafter “Defendant hospital”), with respect to whether he/she is able to receive an operation for the operation of the instant urinology. On April 3, 2006, the Plaintiff was able to receive an operation for the instant urinology from the Defendant, by visiting the Defendant hospital, and was recommended to undergo an operation for the urinary surgery and consultation on the urinium. The Plaintiff was able to receive an operation for the instant surgery along with the e-mail (hereinafter “instant surgery”).

B. Plaintiff’s appeal and process

(1) After the instant surgery, the Plaintiff shown that the instant surgery was conducted through a fresh and soft hole, and that the body fluid flow flow through a fresh, and asked the Defendant of such symptoms. In general, the Defendant explained to the effect that the said symptoms may occur due to pressure on the original body or the blood cycle of the freshing freshing fresh, etc. after undergoing the instant surgery. Such symptoms may vary depending on an individual’s body condition, but may result in normal recovery after 2-3 weeks.

(2) From three weeks after the surgery, a serious pain occurred even in the case where there was a minor contact, such as earbling in clothes or having contact with showers, while the Plaintiff was showing abnormal symptoms in the Plaintiff’s food, which led to a serious pain. Accordingly, even though the Plaintiff visited the Defendant hospital again over one to two occasions, the Defendant did not take any particular measure to determine that there was no special visit on the part of the surgery, while the Defendant did not take any particular measure.

(3) Afterwards, the Plaintiff was engaged in multiple urology for pain treatment but did not receive any specific treatment. Around August 12, 2006, the Plaintiff received mecology and medication from a three-year pain clinic. Around December 14, 2006, the Plaintiff received urcium urcium urcium urcium urcium mecium mecium mecium mecium mecium mecium mecium mecium mecium mecium mecium mecium mecium mecium mecium mecium mecium 20.0, and the Plaintiff received mecium 207 mecium mecium 207 mecium mecium mecium mecium mecium mecium mecium mecium mecium meculium 2.07 meculium meculium 2.

(4) Even after each of the above treatment, the Plaintiff still has been diagnosed as being in a state corresponding to the Type 2 of the Complex Trackary Trackic Trackic Trackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mackic Mack.

(c) Relevant medical knowledge;

(1) The sound distribution telecommunication partial emulsion

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(2) Complex Mad-Mad-Mad-Ma (CRPS)

(A) In the past, the Complex Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Ma

(B) Although there has not been accurately known until now about the cause or origin of the combined flachising symptoms, the first type is primarily considered to be the cause of the outbreak, such as external injury, surgery, safry, and glar, while the second type is different from the occurrence of partial flachising damage, the actual symptoms and treatment methods are the same. The symptoms of the combined flachising symptoms show symptoms within one month after the cause. The symptoms of the combined flachising symptoms appear within the large period of 1 months after the cause, and generally shows extreme flachising (flachis, flachis, flachis, etc.) and sensitives, and their parts appear in the large country, rather than normally anticipated by the induced damage, the strength of symptoms is strong or the continuous period is long, causing serious obstacles to the autonomous flachising and glachising functions.

(C) A single method of inspection is not yet available to diagnose the malutism, and clinical tests and other close examinations (e.g., external scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopics).

【Ground for Recognition: Each statement of the absence of dispute, Gap 1 through 5, 19, 30, 32, 34 through 40, 42, Eul 1, 2, 3, and 11 (including each number), the result of the court of the first instance commissioning the Mayor of the Seoul University of University with physical examination and the result of fact inquiry, the purport of the entire pleadings)

2. Occurrence of liability for damages;

A. Determination as to whether a person was negligent in medical treatment

(1) The plaintiff's assertion

(A) First of all, the instant surgery was a dangerous surgery that does not ensure safety in that it causes damage to a dynamics that reflect the relevant surgery by artificially controlling the negos, and even though the Plaintiff’s negorithy was merely a certain degree of difficulty in sexual life, there was no reason to conduct the instant surgery, the Defendant did not conduct an inspection on whether to adapt to the surgery, such as mitigation, measuring, etc. before the instant surgery, and without applying the method of treatment for diverse emulging symptoms, without applying it, led the Plaintiff to immediately implement the instant surgery, thereby causing the Plaintiff to a state of disability falling under the type 2 of the Complex Madiopulmonary Mala, which is a kind of the negoritha of the relevant negorithy.

(B) In addition, despite the significant impact on the origin of the symptoms whether the combined compactama group received an early appropriate treatment, the Defendant breached the duty of care in treatment after the surgery by failing to take active measures on the Plaintiff’s symptoms that occurred after the surgery and making the Plaintiff’s status worse.

(2) Determination

(A) A physician 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 duties of managing the patient’s life, body, and health, and such duty of care is based on the level of medical practice performed in the clinical medicine field including a medical institution at the time of the medical practice. The level of medical care is generally known to ordinary medical doctors engaged in the same duties at the time of the medical practice, and the so-called “medical consciousness” being recognized. Thus, a doctor should be identified at a normative level in light of the medical environment, conditions, characteristics of the medical practice, etc. (see Supreme Court Decision 2004Da13045, Oct. 28, 2005, etc.). Moreover, a doctor has a reasonable discretion to choose the method of medical treatment deemed appropriate based on the patient’s situation, the level of medical care at the time of the medical practice, as long as it does not deviate from the reasonable scope, and any other result is justifiable and not any other measure among them (see, e.g., Supreme Court Decision 20075Da5875.

(B) First, if the Defendant took the best steps according to the medical level at the time of performing the instant surgery, it was anticipated that the Plaintiff could have been able to incur a present disability, such as multiple psychotropic Madneology, or a similar degree of nephical mathic mathic mathic mas, or could have prevented it.

In light of the following facts: (a) if the Defendant was unable to accurately prove 16 through 18 of this case’s identification data on the results of the instant surgery or the circumstances that were caused after the instant surgery, it is difficult to use these data as evidence to determine negligence at the time of the instant surgery; (b) evidence No. 13, 14, 29 of No. 5 of this case’s identification card No. 5, and the overall purport of the arguments regarding the director of the Seoul University Hospital’s identification by the first instance court on the following grounds: (c) it was impossible to recognize that the Plaintiff might not have any side effect, such as e.g., e., e., g., e., g., g., e., g., e., g., e., g., e., g., e., g., e., g., e., g., e., g., e., g., g., g., g., g., g., g.

(C) Meanwhile, comprehensively taking account of the overall purport of oral arguments as to evidence Nos. 13, 14, and 29, the treatment method of euthanos is a variety of treatment methods, such as behavioral therapy, anesthesia therapy, injection treatment, etc., other than the surgery method. The e-mail partial surgery is an operation method applied to a person who is e-mail, and the Defendant’s implementation of the surgery without conducting a e-mail measuring method, such as e-mail and vibration test, or e-mail test, etc., in carrying out the surgery of this case. However, according to each of the statements Nos. 7 and 11, the Plaintiff’s performance of the surgery of this case was a person who is e-mail, and conducted the surgery of this case without giving advice to the Defendant as to e-mail before undergoing the surgery of this case, and it is difficult to recognize the fact that the Plaintiff conducted e-mail surgery of this case without any other treatment method or e-mail measuring method at the time of performing the surgery of this case.

In addition, even if the Defendant did not take any particular measure against the Plaintiff’s pain after the instant surgery, as seen earlier, insofar as the Defendant could not anticipate that the result of the multiple marcosis in the combined marcosis or any similar degree of nearcosis could not occur to the Plaintiff due to the instant surgery, it is difficult to view that the Defendant was negligent in the occurrence of the Plaintiff’s current disability condition.

Therefore, the plaintiff's assertion that there was negligence in treatment is not accepted.

B. Determination as to the breach of duty to explain

(1) The parties' assertion

(A) The plaintiff's assertion

Before performing the instant surgery, the Defendant provided only explanation to the Plaintiff on the effect of treating the relevant surgery, but did not explain the risks or side effects. In particular, considering the general medical common sense that the instant surgery may cause negorithic pain, and the complex negorithic lethic lethic lethic lethic lethic lethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic e

(B) Defendant’s assertion

The Defendant explained to the Plaintiff before the instant surgery that the Plaintiff had been given a general merger witness due to the instant surgery, such as the delay of recovery from creative disorder, brue, brue, impossibility of circumstance, donation, recurrence, etc. of the general merger witness due to the instant surgery. It was true that the Defendant did not explain at the time on the possibility of occurrence of multiple brue symptoms, brue brue brue, and the instant surgery, but it could not be predicted that the instant surgery could cause multiple brue brue brue brue brue, or the same degree of brue brue brue

(2) Determination

(A) Generally, a doctor is obligated to explain the relevant patient or his/her legal representative on the premise that he/she has performed a medical act that is likely to cause an adverse consequence, such as surgery, and thereafter, or that he/she has performed a medical act that is predicted as a result of death, etc., barring special circumstances, in light of the current medical level with respect to symptoms of disease, treatment method and necessity, anticipated risks, etc., and to sufficiently compare the relevant patient’s necessity or risk and make his/her own decision on whether to receive such medical act (see Supreme Court Decision 2002Da4843, Oct. 25, 2002). In light of the above, a doctor is not obliged to explain in writing that it is extremely difficult for him/her to perform his/her duty to explain in light of the relevant procedural importance required by the doctor in the process, and that it is extremely difficult for him/her to explain the relevant patient or his/her legal representative on the basis of the duty to explain in writing, as well as the duty to explain in light of Article 97 of the Enforcement Rule of the Act.

(B) Since it is clear that the instant surgery is also a medical act falling under the category of treatment for a disease, the above legal principles on the doctor’s duty to explain should be applied likewise.

First, as seen earlier, at the time of the instant surgery, the Defendant could not have predicted that there could be side effects of multiple psychotropicosiss or similar degrees of negosia, and therefore, the Plaintiff’s assertion that the Defendant did not fulfill its duty to explain on this is without merit.

However, in full view of the overall purport of the pleadings in each of the statements in the evidence Nos. 1 and 11, which the Defendant explained to the Plaintiff about the method of the instant surgery and received consent from the Plaintiff, the Defendant, before receiving the instant surgery, may use the term “fluoral distributional distribution partial blocking” or “fluoral blocking” on the part of the Defendant before receiving the instant surgery, instead of the term “fluoral distributional distribution partial blocking” on the part of the Defendant, and the Plaintiff requested the Defendant, after the instant surgery, to the effect that “fluoral distribution requests the Defendant to “fluoral distribution of fluoral distribution of fluoralties” instead of the mere “fluoral blocking” of “fluoral distribution,” and there is no evidence supporting that the Defendant properly explained to the Plaintiff about the fact that the instant surgery was part of the fluoral distribution of fluoral.

In addition, as seen earlier, there is no evidence to acknowledge that the defendant given such explanation, even though it is not a complex flag flag flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf flaf.

Therefore, even if the defendant could not have predicted that the side effects of the multiple psychotropic pains, or a similar degree of negosa, could not occur at the time of the instant surgery, the instant surgery is an unlawful surgery conducted by infringing the plaintiff's right to self-determination by failing to fulfill his/her duty to explain the operating method and side effects to the plaintiff properly. Thus, the defendant has a duty to compensate for damages suffered by the plaintiff.

3. Scope of liability for damages

A. The plaintiff's assertion

The plaintiff asserts that he did not have selected the plaintiff to undergo the surgery of this case if the plaintiff had explained about the side effects of sound distributional partial medication or less than the method of treatment before the surgery of this case. Since the defendant's breach of duty to explain is the same as that of a doctor's breach of duty of care required in the course of specific treatment, the defendant should compensate the plaintiff for the total damages, such as property damage caused by the outbreak of the above complex Madio Madio Madio Madio Madio Ma.

B. Determination

(1) In cases where a physician violates his/her duty of explanation and causes serious consequences, such as death, etc. to a patient due to surgery, it is not necessary to prove only the fact that the patient lost an opportunity for choice on the part of the patient and was unable to exercise his/her right of self-determination by proving only the fact that he/she lost an opportunity for choice due to an explanation and resolution or shortage, but also the relationship that would not result in death, etc. if he/she received an explanation. However, in cases of claiming all damages as a result, there is a proximate causal relation between the serious result and the doctor's breach of duty of explanation and the mistake in the process of acquiring consent. In such cases, a doctor's breach of duty of explanation should be the same degree as that of a doctor's breach of duty of care required in the process of medical invasion on the patient's body (see Supreme Court Decision 93Da60953, Apr. 15, 1994, etc.).

(2) As seen earlier, it cannot be deemed that there is a possibility for the Defendant to have predicted the occurrence of multiple compactary compactary compactic compactic compactic compactic compactic compactic compactic compactic compactic compactic compactic compactic compactic compactic compactic com

(3) However, as above, the defendant violated the duty of explanation on the operating method and side effects of the instant surgery, and thereby inflicted mental pain on the plaintiff by infringing the plaintiff's right of self-determination or choice. Therefore, the defendant is liable to compensate for consolation money.

As to the amount of consolation money, considering the fact that the defendant could not expect the occurrence of multiple franking symptoms or any similar level due to the symptoms of the instant surgery, it is reasonable to determine the plaintiff's age and unmarried point, the plaintiff's occupation before the instant surgery, the emergency operation to prevent the risk of loss of life due to its nature, such as an emergency operation to prevent the risk of loss of life due to its nature. The defendant's violation of the duty of explanation in the process of the instant surgery decision and its execution, the damages were expanded not only to the occurrence of multiple franking symptoms after the instant surgery, but also to the mental problems, such as the side effects of the instant surgery and the depression, etc.

4. Conclusion

Therefore, according to the plaintiff's expansion of the purport of the claim in the trial of the court, the defendant is obligated to pay to the plaintiff the consolation money of KRW 70 million and the damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from April 3, 2006, which is the date of the judgment of the court of the first instance that the plaintiff seeks from February 24, 201, which is the date of the judgment of the court of the first instance, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim in this case is accepted within the above scope of the above recognition, and the remaining claims are dismissed as there is no reason. Since the judgment of the court of the first instance is partially unfair, the judgment of the court of

Judges Sung-mun (Presiding Judge)