2017Da288122 Service Costs

Chungcheongnamnam University Hospital

1. A;

2. B

Daejeon District Court Decision 2017Na102592 Decided November 22, 2017

April 26, 2018

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. If a physician breached his/her duty of care as a good manager, thereby undermining the bodily function of the patient in an irrecoverable way, and, after the damage, only the treatment was conducted to the extent that the recovery of the post-treatment tax or the prevention of any further aggravation thereof, the doctor’s treatment act is not based on the substance of the medical treatment obligation, or merely was conducted as a part of the damage, and thus, the hospital’s side cannot claim for the payment of surgery and medical expenses against the patient (see, e.g., Supreme Court Decisions 92Da15031, Jul. 27, 1993; 2011Da28939, Nov. 27, 2015);

This legal doctrine applies likewise to cases where a patient was able to fully file a claim for future treatment costs anticipated to have been disbursed after a specific time in the previous lawsuit, and where such claim had been actually filed, the patient would have been naturally accepted as part of active damages, but the patient failed to file a claim for the relevant treatment costs in the previous lawsuit, barring special circumstances, such as where the patient’s filing a claim for a separate lawsuit violates the res judicata effect of the final and conclusive judgment in the previous lawsuit and is not allowed under the Civil Procedure Act, barring special circumstances, such as where the patient’s

2. The reasoning of the lower judgment and the record reveal the following facts.

A. The primary medical lawsuit

1) Around May 198, Defendant A received surgery and treatment from a medical personnel affiliated with the Plaintiff, and subsequently, Defendant C and D (hereinafter “Defendant A, etc.”) filed a lawsuit against the Plaintiff seeking compensation for damages against the Defendants and their children as a result of the medical personnel’s negligence.

2) On January 17, 2003, the appellate court (Seoul High Court 2000Na6368) recognized the medical malpractice of the medical personnel belonging to the Plaintiff, and rendered a judgment that recognized the Plaintiff’s liability for damages on the premise that the life expectancy of the Defendant A was presumed to be April 23, 2004 (4.43 years of life expectancy). The appellate court’s judgment was finalized by Supreme Court Decision 2003Da10261 Decided July 25, 2003.

B. The second medical lawsuit

1) As Defendant A continues to exist even after the life expectancy anticipated by Defendant A, Defendant A et al., on April 27, 2004, Defendant A et al. claimed against the Plaintiff for additional damages incurred by Defendant A’s survival beyond the initially predicted life expectancy.

2) The appellate court (Seoul High Court Decision 2005Na2972) recognized the life expectancy of Defendant A as of October 18, 2006, and recognized it as of June 14, 2012 ( maximum of 8.4 years of life expectancy) and additionally recognized damages, such as future treatment expenses until June 14, 2012, and nursing expenses, until September 28, 2037, on condition of the survival of Defendant A. The judgment of the appellate court was finalized by Supreme Court Decision 2006Da78640 Decided April 13, 207.

3) In the above lawsuit, Defendant A, etc. claimed expenses anticipated to be incurred until September 28, 2037, taking into account the average remaining life expectancy of Korea, in the case of future nursing costs. On the other hand, in the case of future medical expenses, Defendant A, etc. claimed only the expenses anticipated to be incurred until December 31, 2012, taking into account that the upper limit of life expectancy of Defendant A, recognized as the result of appraisal, was 8.4 years.

1) Defendant A still remains alive after the life-sustaining period in which the second medical lawsuit was anticipated, and Defendant A claimed against the Plaintiff on February 11, 2014 for additional damages incurred by Defendant A’s remaining life beyond the initially predicted life-sustaining period.

2) The appellate court (Seoul High Court Decision 2014Na12506) partially accepted the Defendant A’s passive claim for damages (living cost) on March 20, 2015. However, Defendant A’s claim for active damages, such as the future treatment cost claim after July 10, 2014, was dismissed as it contradicts the res judicata effect of the second medical lawsuit. The foregoing appellate court’s judgment became final and conclusive by the Supreme Court Decision 2015Da21208.

D. Grounds for the instant claim

The Plaintiff filed the instant claim on the ground that the Defendants did not pay KRW 1,974,640 for medical expenses incurred from August 1, 2014 to December 31, 2014, even though the Defendant continued hospitalized treatment.

3. Examining the above facts and the progress of the lawsuit in light of the legal principles as seen earlier, the following is determined.

A. It is evident that Defendant A was able to claim medical expenses, etc. anticipated to be incurred after 2013 in the second medical lawsuit, and it would have been accepted on the condition of Defendant A’s survival if it was actually claimed.

B. Nevertheless, even if Defendant A’s claim for medical expenses, etc. anticipated to be incurred after 2013 was not allowed under the Civil Procedure Act because it contradicts the res judicata effect of the final and conclusive judgment of the second medical lawsuit, the pertinent claim, etc. is not extinguished under the substantive law.

C. In the instant case where there are no circumstances such as that Defendant A was actually reimbursed by the Plaintiff for the medical expenses incurred after 2013 or that Defendant A renounced the relevant claim, it is reasonable to view that the Plaintiff’s treatment of Defendant A is still merely a compensating for the damages incurred to Defendant A due to the negligence of the medical personnel belonging to the Plaintiff. Therefore, the Plaintiff may not claim against the Defendants for payment of the medical expenses incurred after 2013.

4. Nevertheless, the lower court determined that the medical expenses the Plaintiff sought in this case did not constitute the advancement of losses caused by the Plaintiff’s tort against the Defendant A, on the grounds that the active damages for which the Plaintiff is liable to compensate for to the Defendant A, in the second medical lawsuit, should be deemed to have been compensated by the determination of future medical expenses, etc., which were calculated by June 14, 2012, and the nursing expenses, etc., which are to be regularly paid until September 28, 2037. In so doing, the lower court erred by misapprehending the judgment contrary to the Supreme Court’s precedent under Article 3 subparag. 2 of the Trial of Small Claims Act. The allegation contained in the grounds of appeal on this point is with merit.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Park Sang-ok

Justices Kim Jae-han

Justices Lee Dong-won

Justices Park Jong-young