(영문) 서울고등법원 2016. 1. 28. 선고 2015나31713 판결

1. The part of the property damage in the judgment of the court of first instance against the plaintiff, which orders additional payment, shall be revoked.

The defendant shall pay to the plaintiff 97,347,229 won with 5% interest per annum from March 23, 2004 to January 28, 2016, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal and the defendant's appeal are dismissed.

3. The total costs of a lawsuit shall be three-minutes, and such two-minutes shall be borne by the plaintiff, and the remainder by the defendant respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 3,419,920,748, and to the plaintiff 2, 3, 4, and 5 respectively 1,00,000,000 per annum for each of them from March 23, 2004 to the delivery date of a copy of the complaint of this case, and 20% per annum for each of them from the next day to the full payment date.

2. Purport of appeal

A. The plaintiff and the plaintiff before remanding

Of the judgment of the court of first instance, the part against the plaintiffs and the plaintiff before remanding shall be revoked. The defendant shall pay to the plaintiff 2,416,34,052 won, and 80,000,000 won to the plaintiff 2 before remanding, and 90,000,000 won to the plaintiff 3, 4, and 5 before remanding, and each of them shall be 5% per annum from March 23, 2004 to the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete returning.

B. Defendant

Of the judgment of the first instance, the part against the defendant is revoked, and all the claims filed by the plaintiff and the plaintiffs before remanding are dismissed.

Reasons

1. Objects to be tried on the political party after remand;

As to the judgment of the party before remanding, the plaintiff filed each appeal against the plaintiff and the plaintiff before remanding (the plaintiff did not appeal against the plaintiff 2, 3, 4, and 5 before remanding). The Supreme Court reversed and remanded only the part against the plaintiff as to property damage in the judgment of the party before remanding, and the part against the plaintiff as to the property damage in the judgment of the party before remanding, except for the part against the plaintiff as to the property damage in the judgment of the party before remanding, the remaining part concerning the plaintiff 2, 3, 4, and 5 before remanding, and the part concerning the consolation money of the plaintiff as to the remaining part of the judgment of the party before remanding. Thus, the judgment of the party

2. Basic facts

The following facts may be acknowledged by taking into account the following facts, or there is no dispute between the parties, or the whole purport of the arguments as a result of the request for physical examination of the head of the hospital of the first instance, as a result of the request for physical examination of the head of the hospital of the first instance.

A. Status of the parties

The defendant establishes and operates the Seoul Asan Hospital (hereinafter referred to as the "Defendant Hospital") as an incorporated foundation established and operated by a general hospital or any other medical institution. On March 23, 2004, the plaintiff is a person who was administered in spine patrine to treat the cliflosis escape symptoms, etc. at the defendant hospital.

(b) Execution of surgery for the blocking of both inner and several times of the plaintiff's internal organs;

1) From around July 1998, the Plaintiff had symptoms on both arms and left side, but did not receive any specific treatment from July 2003, and the Plaintiff began to undergo a serious pain, and on August 5, 2003, the Plaintiff was under the diagnosis of the following: (a) as a result of various tests, the Plaintiff was under the diagnosis of the “Woman’s vertebrate No. 5-6 and the left side 5 Woman’s disease.”

2) After that, the Plaintiff received towing, physical therapy, etc. from another medical institution, but continued pain, on February 25, 2004, the Plaintiff returned to the Defendant hospital’s department outside the hospital. Nonparty 1, a medical specialist outside the hospital of the Defendant hospital, recommended the Plaintiff to undergo vertebalopic surgery in the hospital of the Defendant hospital (hereinafter “clateric clinic”).

3) As a result of the RoI test conducted by a Rosium on March 2, 2 of the same year, the Plaintiff confirmed that the MasI test conducted on March 2, 201 shows that the MasI test No. 4-5 of the Rabical signboard escape certificate, No. 5-6, 6-7 of the Mascis, and spine space escape certificate, and the Mascison from the Mascison test conducted by the Mascisium. On the same day, the Plaintiff was administered by Nonparty 2 of the Defendant hospital and the medical specialist, and was administered by the Mascis (C-EI; Cerv-Escidal Ltd.).

4) On March 9, 2004, at the Defendant Hospital, the Plaintiff was subject to the Nonparty’s blocking surgery, such as the sub-paragraph (j) of the same sub-paragraph, and was subject to the Defendant Hospital’s safeguard blocking surgery on the left side on the 16th day of the same month.

C. The process of the instant treatment and the occurrence, etc. of symptoms difficult to breathesis

1) The medical professionals at Defendant Hospital continued to perform the Plaintiff’s pain in spite of the above procedure, around 14:10 on March 23, 2004, when the Plaintiff’s pain continued, the Defendant hospital’s medical professionals carried out the c5-root blocking surgery (C5-root) No. 5 of the cratulation. First of all, in checking the postmortem shape, quantity, etc. of the X-ray root by inserting the 0.5m meter, and then inserting the scinron into the scinron (cinron 20mg) and the scinine 1c (hereinafter “instant procedure”). The Defendant hospital linked the scinron with the scinine 1c) and the scinary medicine (hereinafter “instant treatment”).

2) However, after the injection of medicine, the Plaintiff showed the symptoms of complete pulmonary anesthesia or other general anesthesia (topal spinal spinal ethural Aneseia) (hereinafter “instant accident”).

3) Accordingly, at around 15:20 on the same day, the medical professionals at Defendant Hospital moved the Plaintiff to the recovery room while taking emergency measures, such as ampu-baging. At the time, the Plaintiff’s oxygen was measured at 95-98%. The medical professionals at Defendant Hospital continued to do so, while taking necessary measures, such as inserting up a amplging, inserting up a amplging, etc., the Plaintiff 16:35 doctor Nonparty 2, 16:55, and began to operate an artificial absorption machine by inserting up a amplging a amplging machine, and then converting the Plaintiff into an institutional insertion at around 17:08.

4) After the same day, the Plaintiff appeared to have a response at around 18:00 on the same day, and re-explosion began, and transferred to a serious patient room at around 19:25.

D. After the procedure of this case

1) After the instant treatment, the Plaintiff: (a) turned out the symptoms and breath of the respiratory difficulty as seen earlier; (b) as a result of CT examination conducted around March 19:15, 2004, on the day of the instant treatment, it was confirmed that there was a wide range of marcation from brain training to March 3, 2004; and (c) as a result of GRI examination conducted on March 31, 2004, the marcation of the sarcation of the sarcosis was observed to the degree of training, light sarcation, and sarcation.

2) After the instant procedure, the Plaintiff had improved consciousness, but all crymal path and sense of climatic 3 et al. up to now, and could have been exposed to communication with them, but the symptoms, such as respiratory failure, dyssis disorder, and mathy, are fixed, and there is no possibility of improvement due to future treatment.

3) The Plaintiff, while hospitalized after the instant treatment, frequently showed symptoms of pulmonary and pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary treatment. The Plaintiff inhales pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary c

(e) Relevant medical knowledge;

(i) A conical signboard escape certificate;

The post-sign escape certificate is a disease that sticks out in part or in whole to the cirth of the fiber wheels or the outer fiber surrounding the nules due to changes in the cirrability of side signboards, and pressures on the cirrosis and the cirrosis, and causes the cirrosis and the cirrosis symptoms.

(ii)the general treatment method of conical signboards escape certificates;

In the event that the period during which the symptoms of the gymnasium and the gymnasium are short or not serious, pharmacologic treatment (chymnasium control, fymnasium treatment, etc.), physical therapy, etc. shall be conducted, and where there is no gymnasium in the treatment, or where there is no gymnasium or serious degree of gymnasium treatment, it can be seen that the gymnasium therapy such as the gymnassis and the gymnasium blocking therapy, etc.

(iii) Magneary pathys;

The method of treating the climatic climatic climatic climatic cliff is used mainly in the case of severe pains and in the case of severe cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffics.

4) Mneutical blocking

A) Definition: The part of the neutism, which is divided from brain, into two parts of diskss, is called neutron. The neveroot block means an operation to reduce pains by directly injection of national anesthesias and scarte agents, etc. in the vicinity of the nephan that causes pains under X-ray. The method is to determine meines through clinical dogs, megales, light of light, light of light, etc., and to block the neutism for the purpose of using a neute under X-ray.

(B) Specific treatment method of light balves chilling surgery: Three (3) injection paths of the front, side and rear bank, and common. Under X-ray project, patients are fluoring with a erode (e.g., exhauster as to the exhauster and chest), and a brut part of the shoulder. They are fluoring the line linking the end of the beam of the talves No. 6 in the talth of the talves, and 0.5cm from the end of the talves, and fluoring the end of the talves into the front line. At least 1.5cm from the end of the talves, the talves of the talves are added to the front line, and the talves of which are 1.5cm after the extension of the talves into the bottom of the talves, and are fluoring into the bottom of the t.

C) Merger certificate: Injecting it into the blood from a strokeer by the tyringer of stroke connection or injecting it into the stroke (in the event of injecting it, it shall be the blood species, and shall be pressured by the engine. Since injecting it into the national anesthesia within the stroke, it would immediately lead to a stroke and anti-competitive medication. Other side effects that may occur include infection (i.e., infection), anti-climinary local disease, pulmonary paralysis (i.e., g., blama expenses, pulmonary paralysis, food rooms, etc.), side effects on medicines (national anesthesias, strokes, strokes, etc.), side effects on the operation materials (i.e., injection, disinfection, and operation locks).

(d) Expected effects: The diagnosis usefulness for the determination of the level of pains is high, and is also used in such a way as to preserve the radioactive system and the radioactive pains, etc. It is also used as a treatment method. It is effective for diseases with chronic symptoms, such as protruding, spine brate, etc. as a treatment method.

(v)the reasons for the outbreak of sea-light racing and the outbreak;

Apinal test refers to symptoms of the collapse of a single body because a large number of blood transfusions are prevented, and is generated by various causes, such as the existing Easter disease, low blood pressure, cardiomactic pressure, coloring operation, coloring, heart organs, infection, pregnancy, flachi, and credit.

As in the instant procedure, the cause of the occurrence of the blood disorder in the course of the relevant surgery is one of the following cases: (i) where a person is exposed to an increase in the number of times or medicine and causes dynamics or serums; (ii) where a person is administered an Amere, the occurrence of a blood transfusion from a medicine; (iii) injecting a drug into a bloodline or into a stimule; and (iv) blood pressure pressure, etc. during the procedure.

3. Occurrence of liability for damages;

The reasoning of this court's explanation concerning this part is as stated in Paragraph 3 of Article 420 of the Civil Procedure Act, except that the part referred to as "Plaintiffs", "Plaintiffs", and "the above plaintiffs" in Paragraph 3 of the reasoning of the judgment of the court of first instance is used again as "the plaintiff," and the part referred to in Paragraph 3-e (e) of Article 3 is used again as "the limitation of liability" as follows. Thus, it is cited as it is in accordance

E. Limitation of liability

However, as seen above, the plaintiff suffered from around 1998 symptoms on both arms and left part, but not receiving any specific treatment, as a result of conducting various inspections at the defendant hospital in around August 2003 and April 2004, it was confirmed that there was an escape certificate of conical signboards escape No. 4-5, 5-6, 6-7, 6-7, vertebrecion escape certificate, etc., and that the plaintiff got the procedure in this case for its treatment, and that there was no possibility that verteculation will inevitably occur due to vertecism, etc., but it cannot be completely ruled out that all responsibilities cannot be borne by the medical personnel only to the medical personnel since the patient's condition order changes in time of treatment, and thus, it cannot be determined that the plaintiff would be able to fully take account of all the circumstances other than the medical personnel's pulmonary treatment of this case, in light of the principle of equitable treatment that the plaintiff would incur damages to the medical personnel immediately after the treatment of this case.

4. Scope of liability for damages

The basis of calculation, expenses, calculation, and the amount of the property, mental damage suffered by the plaintiff due to the accident of this case shall be as follows (However, pursuant to the discount method that deducts the interim interest at the rate of 5 percent per month, it shall be calculated as the current price at the time of the accident of this case, and the calculation shall be discarded for less than the cost and less than the last month for the convenience of calculation).

(a) Actual income:

(i) the facts of recognition and evaluation;

A) Date of birth and gender: Male on July 26, 1952

(b) Age at the time of an accident: 51 years of age and 6 July;

Unless there are special circumstances, it is reasonable to view that the Plaintiff is alive until March 23, 2019, when 15 years have elapsed since the date of the instant accident, in light of the following: (a) the number of life expectancy is reduced due to the decline in physical function, the occurrence of a merger, etc.; and (b) the number of life expectancy of the patient at the 50 full-scale marina project was estimated to be more than 9 years from the date of the instant accident; and (c) the Plaintiff is alive until the date of the closing of argument in the trial in which 9 years have elapsed since the date of the instant accident, barring any special circumstances.

D) Occupation and maximum working age

The Plaintiff, from March 1, 2001 to March 1, 2001, operated the ○ ○ male and council member jointly with Nonparty 3 (50% of the Plaintiff’s shareholding ratio) at the new forest dong in Seoul Special Metropolitan City, and barring any special circumstance, it is reasonable to deem the Plaintiff’s maximum working age as a doctor to be up to July 25, 201 until he reaches the age of 65 (see Supreme Court Decision 93Da3158, Sept. 14, 1993).

(e)financial assessment of operating capacity;

The Plaintiff, while jointly operating Nonparty 3 and ○○ Magney and Council members, calculated the business income of the said Council members at the time of the final return on the tax base including global income tax for the year 2003 (i.e., the total income amount of 417,177,015 won - necessary expenses - 290,190,249 won). The amount of the business income at the time of the final return on the tax base including global income tax for the year 2004 is 37,06,372 (i.e., the total income amount of 113,052,295- necessary expenses - necessary expenses 75,985,923). The competent tax office decided the business income related to the operation of the said Council member from January 203 to March 2004, the amount of each of the above amounts can be deemed the actual income of the Plaintiff from January 1, 2003 to March 6,76).

As to this, the Plaintiff’s monthly income until the date of report on current status of 13,052,295 won at the time of report on current status of 204 : 37,684,098 won (=13,052,295 won x 1/3). Of the monthly average expenses of the above members, it is presumed that the amount corresponding to the Plaintiff’s share is 17,030,619 won (=408,734,856 won x 1/12) in light of the total expenses of the preceding year 40,653,479 won (=37,684,098 - 17,630,619 won) in light of the above fact-finding report on current status of 40,000 won in 20,000 won in total income tax base for 30,000 won in 20,000 won in reference to the basic report on current status of 13.

Ultimately, it is reasonable to view that the Plaintiff could have earned income equivalent to KRW 10,936,875 per month calculated on the basis of the business income reported to the tax authority until July 26, 2017, when the date of the instant accident 65 years old from the date of the end of operation.

(f)the loss rate of future disability and labor capacity;

It is reasonable to view that the Plaintiff lost 100% of its labor ability by falling under two parts of the Mabro World table, brain, damage from sea water Ⅲ-D-(3) in the state of complete death of less than 3 Mabrop.

In light of the above facts, the defendant argued that since the time from the time when the plaintiff was admitted to the defendant hospital, there was an escape certificate of conical signboards No. 4-5, No. 5-6, and No. 6-7, and spin-off space development caused by the cryposis, and that the labor capability loss rate should be at least 23%, and thus, the above cryposis should be considered as equal degree of contribution to the crypary disorder. Thus, since around July 1998, the plaintiff had low symptoms on the outside and left side side of both arms, and there was no evidence to acknowledge that the above crypary escape was caused by the above cryposis from the outside of the defendant hospital to the plaintiff on August 5, 200, there was no reason to acknowledge that the crypary escape test was conducted by another medical institution, such as cryposis No. 5-6, and that there was no reason to recognize that the crypary escape test was conducted by the plaintiff.

[Reasons for Recognition: Clear fact-finding, empirical rule, evidence No. 11-2 and 3, each entry, the head of the Geumcheon District Tax Office in the first instance, the results of fact-finding on the director of the Songpa District Tax Office, the results of fact-finding on the director of the Godong-dong Hospital in the first instance, the results of the

(ii)Calculation;

1 m1 m2 m2 m1-2 m1-2 m2 m2 m2 m1-23-726 10,936,875 100 162.00 162.00 162.39830 162.00 162.00 160 m2.3983 1,338,654,907

B. Limitation on liability

1) Limitation ratio: 80%;

2) Calculation: 1,070,923,925 won (=1,338,654,907 won x 80%)

C. Judgment on the defendant's defense of set-off

The defendant asserted that the plaintiff continued to receive medical treatment at the defendant hospital by June 24, 2009 after the procedure of this case. The defendant's claim of KRW 726,532,88 of the medical expenses of the plaintiff at the defendant hospital is offset against the amount equal to the above damage claim of the plaintiff.

According to the evidence evidence No. 9, the plaintiff was found to have failed to pay the remaining 726,532,888 won out of the medical expenses incurred in treating the patient from March 23, 2004 to June 24, 2009 (i.e., 62,60,155 won among the medical care expenses + 663,889,873 won). Since the plaintiff paid 17,140 won to the patient as the cause of the medical care claim, the plaintiff's duty of care was merely a duty of due care of a good manager to prevent the patient from being incurred, and thus, the doctor's duty of care cannot be deemed to have been fulfilled to the extent that the patient's physical function could not be recovered due to the plaintiff's failure to perform his/her duty of care, or that the plaintiff's remaining 7,532,888 won could not be recovered from the patient's injury or injury to the patient's body as part of the treatment claim No. 97.

(d) Condolence money;

1) Reasons for consideration: The plaintiff's age, family relation, property and level of education, the circumstances and result of the accident of this case, the degree and degree of disability resulting therefrom, and other various circumstances shown in the arguments of this case.

(ii) Amount determined: 30,000,000 won;

E. Sub-committee

Therefore, the defendant 1,100,923,925 won (i.e., property damage 1,070,923,925 won + consolation money 30,000,000 won) and 1,003,576,696 won (i.e., property damage 973,576,696 won + 30,000,000 won) as to 30,000 won with respect to 1,100,925 won (as to 973,576,696 won + 30,000 won with respect to 30,000 won with respect to 1,00,000,000 won (as of March 23, 2004, 200, which is the date of the first instance judgment) as to the existence and scope of the defendant's obligation to perform, 5% per annum from the next day to the date of full payment, 20% of damages (3639, 29.7.7.7.

5. Conclusion

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed as it is without merit. Since the part of the property damage in the judgment of the court of first instance is partially unfair with the conclusion, the plaintiff's appeal shall be partially accepted and the defendant shall be revoked and the defendant shall be ordered to pay the above amount additionally recognized in the trial. The remaining appeal by the plaintiff and the defendant shall be dismissed as it is without merit. It is so decided

Judges Lee Chang-sik (Presiding Judge)

심급 사건

-서울동부지방법원 2009.11.5.선고 2007가합2921

-서울고등법원 2011.2.24.선고 2009나117463

-대법원 2015.11.27.선고 2011다28939

서울고등법원 2016.1.28.선고 2015나31713

원심판결

-서울동부지방법원 2009. 11. 5. 선고 2007가합2921 판결

-서울고등법원 2011. 2. 24. 선고 2009나117463 판결

-대법원 2015. 11. 27. 선고 2011다28939 판결

본문참조판례

-대법원 1993. 7. 27. 선고 92다15301 판결