Requirements for the recognition of "medical doctor's negligence" in medical malpractice and the criteria for the determination thereof.

Article 268 of the Criminal Act

Supreme Court Decision 2010Do10104 Decided April 14, 201 (Gong2011Sang, 960) Supreme Court Decision 2009Do13959 Decided September 8, 2011 (Gong2011Ha, 2164)

Defendant

Defendant

Attorneys Park Bo-young et al.

Seoul Central District Court Decision 2013No2280 Decided November 7, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below reversed the judgment of the court of first instance which found the Defendant not guilty on this part of the charges of this case, on the ground that in full view of the facts and circumstances acknowledged by the relevant adopted evidence, the negligence of damaging the front part of the lifts caused 3 cm by negligence while using the lifts, which is a dentist collecting the instant surgery and separating the milked organization, was committed.

2. However, it is difficult to accept the above judgment of the court below for the following reasons.

A. In order to determine the existence of negligence in a medical accident, it is recognized that a doctor could have predicted or avoided the occurrence of the outcome, even though he/she could have predicted or avoided the occurrence. Determination of the existence of negligence must be based on the level of general attention of ordinary workers engaged in the same work and occupation, and shall take into account the level of general medical science at the time of the accident, medical environment and conditions, characteristics of medical practice, etc. (see, e.g., Supreme Court Decision 2009Do13959, Sept. 8, 2011).

In addition, the facts charged in a criminal trial should be proven by the prosecutor, and the judge should admit the conviction with evidence having probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is a doubt as to the defendant's guilt, it is inevitable to determine the defendant's interest (see, e.g., Supreme Court Decision 2002Do5662, Dec. 24, 2002).

B. According to the reasoning of the judgment below and the evidence duly admitted by the court below, ① the company importing and supplying the lifts to the hospital of this case: (i) in the inquiry inquiry reply in the relevant civil case, it is used in ging or cutting down ginging the gings or bones into a single type of grings separation machine; and (ii) it is not possible for the defendant to use the ging and cutting off at least 10 to 15 km as in the instant case and ging off the ging and cutting off the gings, but only when used for a long time, it is impossible for the defendant to have the ging and cutting off the ging and cutting off the gings to the high heat at the time of disinfection; and (iii) even in light of the medical examination in the relevant civil case, it is highly probable for the defendant to use the ging and cutting off the gings by force before the surgery; and (iv) it is highly probable that the defendant had no specific reason to use the gings in the instant case.

Examining these facts in light of the legal principles as seen earlier, it is difficult to readily conclude that the evidence submitted by the prosecutor alone was negligent in excessive force while using the instant lifts, and it is also difficult to anticipate that the Defendant could not have predicted that the instant lifts, which is ordinarily capable of withstanding not less than 10 to 15 km, could not occur during a short and long-term operation. Thus, even if the Defendant had a little power while using the instant lifts, it is difficult to regard it as negligence.

C. Nevertheless, the court below determined otherwise that the Defendant could sufficiently recognize the fact that the Defendant had caused excessive force at the time of the instant operation by negligence, and thereby convicted him of this part of the charges. The court below erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on medical malpractice, which affected the conclusion of the judgment.

3. As such, the lower court’s determination on this part of the facts charged is erroneous, and thus, should be reversed. In so doing, the lower court deemed that the above part and the remainder of the facts charged are in a relationship of a single crime, and thus rendered a single sentence on the entire facts charged of this case, the lower

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 Kim Shin (Presiding Justice)