(a) doctor's general duty to explain;

B. Whether a doctor's duty to explain can be exempted where there is little possibility that a risk, such as postary gift, side effect, etc., may be caused.

(c) The case holding that even though brain dystrophism does not have substantial frequency of occurrence, it is one of the typical side effects following the opening operation, the risk of occurrence of legacy is deemed to be a matter that must be explained to the patient himself/herself along with the results anticipated to occur when it does not undergo an operation and the treatment methods of alternative teas, etc.

D. Whether exemption from the duty of explanation by the so-called assumptive consent can be granted on the sole ground of the reason that the patient is bound to perform a regrative surgery for the purpose of the regrative treatment, and that the patient was hospitalized in the mind that he/she was hospitalized

(e) a case rejecting a doctor’s assertion that the obligation to explain should be exempted from the medical treatment privilege.

F. Whether there is a proximate causal relationship between the breach of the duty to explain and the result of the breach of the duty to explain in a case where only the consolation money is claimed and all damages are claimed.

A. Generally, a doctor is obligated to explain to a patient or his/her legal representative about the symptoms of a disease, treatment method and necessity of treatment, anticipated risk, etc. in light of the current medical standards and to allow the patient to choose whether to receive such medical practice by sufficiently comparing the necessity or risk of the patient in question, on the premise that the patient or his/her legal representative is required to obtain an agreement on the duty under a medical contract or an intrusion, etc. in cases where the patient is engaged in any medical act, which is likely to cause bad result, or where a serious result, such as death, is anticipated.

B. The doctor's duty to explain as referred to in paragraph (a) cannot be exempted solely on the ground that there is little possibility of causing danger, such as aftermath or side effects, according to the relevant medical practice, and in the event that aftermath or side effects are typically dangerous or irrecoverable in the relevant medical treatment act, the doctor's duty to explain should be subject to explanation notwithstanding the possibility of occurrence.

C. The case holding that if it is serious that it is difficult for the patient to recover the degree of the risk because the cerebral damage occurring due to the after-depth surgery, such as 0.5 to 1% of the case where there is an obvious psychotropic disorder, and the cerebral typhism occurring to the patient including mixed money or intellectual impairment, even if the occurrence frequency is not high, it is one of the typical side effects following the rhesion, and the patient actually suffers from the rhetoral disorder, such as the rhetore, rheat, intelligence, personality change, etc. which is not on the right side as a result of the operation, the risk of the rupture cannot be deemed to be a matter that should have been seriously explained to the patient and sufficiently explained to the patient in detail, along with the result expected to occur without the operation and the treatment method of the rupture, etc. of the rupture.

D. The discharge of a physician’s license by the so-called assumptive consent that the patient would have consented to the surgery even if the patient had made a correct explanation from the doctor is permitted only when the patient’s consent is clearly anticipated. The violation of the patient’s right to self-determination cannot be denied on the sole basis of the presumption that it is evident that the patient was hospitalized at the hospital on the ground that it is obviously clear that the patient’s refusal to cope with the surgery would have been able to take into account various side effects that the patient could not be accompanied by alcohol and that the surgery would have been approved.

E. The case holding that the doctor's explanation cannot be exempted solely on the ground that there is a concern that the doctor's explanation may result in the patient's rejection of medical knowledge and technical reasonable medical treatment on the grounds of unreasonable grounds, and there is no evidence to prove that the doctor's explanation of risks of after-the-job legacy may cause a response to the physical, mental response or treatment purpose that may directly endanger the patient, and thus, there is no evidence to find that the doctor's explanation of risks of after-the-job legacy should be exempted from the duty of explanation at the level of the so-called doctor's privilege right on the premise that there is such concern.

F. In cases where a physician violates his/her duty of explanation and caused a serious result, such as death, etc., on the part of the patient, he/she shall only prove the fact that the patient lost an opportunity to choose and that he/she was unable to exercise his/her right of self-determination, and that there is no need to prove that the patient would not have caused the 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, the doctor's breach of duty of explanation should be the same degree as that of the doctor's breach of duty of care required in the process of medical invasion on the patient's life and body, in light of the fact that the patient's right of self-determination

Article 750 of the Civil Act, Articles 751 and 763 of the Civil Act (Article 393)

A.D. (f) Supreme Court Decision 92Da25885 delivered on April 15, 1994. (f) Supreme Court Decision 93Da60953 delivered on April 15, 1994. Supreme Court Decision 91Da36710 delivered on April 14, 1992

[Judgment of the court below]

Attorney Lee Young-young, Counsel for the plaintiff-appellant

Seoul High Court Decision 92Na24938 delivered on December 3, 1993

The part of the judgment below against the defendant, excluding consolation money, shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The defendant's appeal against the consolation money shall be dismissed, and all costs of appeal shall be assessed against the defendant.

The grounds of appeal (to the extent of supplement in case of supplemental reasons) are examined.

1. In light of the records, the court below's finding that the defendant did not explain the fact that the chest scarcity and the non-party, etc. of the National Medical Center established and operated by the defendant could follow side effects such as cerebral chye, etc. after the operation before performing the opening operation in the judgment of the court below. The court below rejected the defendant's assertion that the degree of the plaintiff's heart disease at the time of hospitalization was serious to the extent that the patient's heart disease should not immediately undergo the opening operation, and that the patient's heart disease was extremely highly at a high risk of death within the three to five years due to the aggravation of illness, and the court below's rejection of the evidence corresponding thereto. In so doing, there is no reason to view that there was no error of law such as the exercise of the right to request tiny or insufficient deliberation, or misconception of facts due to the violation of the rules of evidence, the reason and lack of reason

2. In general, a doctor is obligated to explain the symptoms of a disease, the method and necessity of treatment, the anticipated risk of occurrence, etc. to the patient or his/her legal representative when he/she conducts a medical act which is highly likely to cause a bad result, such as an operation, etc., to the patient or his/her legal representative when he/she conducts a medical act which is anticipated to cause a bad result, or when he/she conducts a medical act for which a death, etc. is predicted, unless there are other special circumstances, to allow the patient or his/her legal representative to choose whether to receive the medical act by sufficiently comparing the patient's necessity or risk, and by sufficiently comparing the patient's necessity or risk and choosing whether to receive the medical act. The doctor's duty to explain can not be exempted solely on the ground that there is little possibility that there is a possibility of danger such as post-treatment or side effects, etc. in accordance with the medical act. If post-treatment or side effect is a dangerous or irrecoverable risk which is typically caused by the relevant medical act, it shall be subject to explanation notwithstanding the possibility of occurrence.

According to the records, the frequency of brain damage caused by the after-depth surgery, such as the crym cryposis, etc., as in this case, is 0.5 to 1% in cases where there is an obvious psychotropic disorder, and the crym cryposis, including mixed money or intellectual function disorder, to 8 to 10% in cases where it is included, is one of the typical side effects following the crym crypary surgery, even if the occurrence frequency is not significant. In fact, the plaintiff actually suffered unexpected obstacles due to the above crypryprym crypryprypry, which are difficult to recover the degree of risk. Accordingly, the risk of the cym cryprypry as above, along with the outcome and possible treatment method of the cryprypryp, it cannot be deemed as a matter that should have been seriously explained to the plaintiff himself/herself, who is the patient, and should be explained in detail.

In addition, even if the plaintiff was hospitalized in the above National Medical Center on the ground that he was aware of the side effects, etc. of the operation of this case or gave implied waiver from the doctor, such circumstance alone does not necessarily mean that the plaintiff was aware of the side effects, etc. of the operation of this case, and even according to all evidence shown in the record, there is no evidence to acknowledge it, and even if the patient had given correct explanation from the doctor, the medical doctor's immunity by the so-called foster consent that he would consent to the surgery would be allowed only when the patient's consent is clearly anticipated as a defense of the doctor (see Supreme Court Decision 92Da25885 delivered on April 15, 1994). In addition, it is clear that the plaintiff could not be admitted to the above national medical center by taking into account the possibility that the plaintiff could not accept the above operation's self-determination right to self-determination by taking into account the side effects of the patient.

Furthermore, solely on the circumstance that there is a concern that a doctor's explanation may cause a patient to refuse medical knowledge and technical reasonable medical treatment on the basis of unreasonable grounds, the doctor's explanation cannot be deemed exempted. Moreover, there is no evidence to find that a doctor's explanation of risks of post-treatment may cause a reaction to the physical, mental response or treatment purpose that directly threatens the plaintiff. Thus, the author's assertion that the duty of explanation should be exempted from the point of view of the so-called doctor's privilege cannot be accepted on the premise that there is such concern.

Therefore, the court below rejected the defendant's assertion that in the case of this case on the grounds of the scarcity or family consent of the possibility of causing danger, or doctor's privilege, etc., the duty to explain should be exempted. However, the conclusion is just in its conclusion, and there is no error of law such as misunderstanding of legal principles as to the duty to explain as pointed out by the doctor's theory. There is no reason to discuss.

3. According to the reasoning of the judgment of the court of first instance, the court below relied on the reasons of the judgment of the court of first instance, and held that the opening operation of this case did not fulfill the duty to explain patients and did not infringe upon the plaintiff's right to consent, and thus, the defendant is liable for damages suffered by the plaintiff due to the medical accident of this case caused by the non-party, etc.'s negligence in the course of performing his duties, and held that the defendant is liable for compensation for damages sustained by the plaintiff as to the scope of compensation for damages sustained by the defendant, and that the defendant is liable for the passive damages suffered by the plaintiff as a bank until the retirement age reaches the retirement age, the daily retirement allowance for the income and the nursing expenses that could have been incurred by the plaintiff for the city

However, in cases where a physician violates his/her duty to explain and caused a serious result of death, etc. to a patient, he/she shall only prove only the fact that he/she lost an opportunity for choice on the part of the patient and lost an opportunity to exercise his/her right to self-determination and that he/she would not have caused the death, etc. if he/she received an explanation. However, there is no need to prove that there is a proximate causal relation between the serious result and the doctor's breach of his/her duty to explain and the mistake in the process of acquiring consent. In such cases, a doctor's violation of his/her duty to explain should be the same degree as that of a doctor's violation of his/her duty of care required in the process of medical invasion on the patient's life and body (see Supreme Court Decision 93Da60953, Apr. 15, 1994).

However, even according to the reasoning of the judgment of the court of first instance, even if the non-party et al. were determined as having invoked the reasoning of the judgment, the court below conducted a sufficient pre-examination to diagnose the plaintiff's disease in the first instance, such as the Plaintiff's 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 s, and to determine.

Nevertheless, under the premise that there is a proximate causal relationship between the non-party et al.'s violation of the above duty of explanation and the above brain franking, the court below erred by misapprehending the legal principles as to the scope of compensation for damages when the court below breached the duty of explanation, and as such, it is obvious that such violation affected each cited part of the passive damages and active damages. Thus, there is a reason to point out this issue.

4. Accordingly, the part of the judgment of the court below against the defendant is reversed except for consolation money, and this part of the case is remanded to the court below. The defendant's appeal against consolation money is dismissed. The costs of appeal against this part are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)