[1] The case holding that the defendant's violation of the above duty of explanation and the death of the victim cannot be recognized in a case where the defendant, an oriental medical doctor, continued to use oriental medicine drugs without notifying the victim of the possibility of side effects caused by the use of oriental medicine medication and caused the victim's death by damage to inter-functional function, etc.

[2] In a case where the defendant, an oriental medical doctor, committed death by occupational negligence on the ground that the defendant can be recognized as a causal relationship between negligence in failure to take all measures and the death of the victim, in a case where the defendant, who was a oriental medical doctor, sustained medicine by taking away medicines without exercising the right of transfer to a specialized hospital capable of examination and treatment, resulting in death by taking advantage of liver functions, etc.

[1] In a case where a herb doctor Defendant continued to use herb drugs without notifying the victim of the possibility of side effects caused by the use of herb drugs in advance and caused the victim's death due to damage to inter-functional functions, etc., the case holding that the above violation of the duty of explanation and the death relationship between the victim's death cannot be acknowledged on the ground that the Defendant's violation of the duty of explanation and the duty of explanation not notified in advance of the possibility of harm to inter-functional functions caused by the use of herb drugs is acknowledged, but it cannot be concluded that

[2] In a case where the Defendant, an oriental medicine doctor, caused the death of a victim due to damage to liver functions by continuously taking medicines without exercising the right to transfer them to a specialized hospital capable of undergoing an examination and treatment, even though there was a symptoms of abnormal liver functions, the case affirming the causal relationship between the Defendant and the death of the victim on the ground that the Defendant merely ordered the victim to undergo medical treatment only at the Defendant’s hospital while giving the victim an instruction for continuous taking of medicines, and that the Defendant could recognize the cause and condition of the liver functions and did not fully take all appropriate measures to prevent the risks therefrom, in light of the fact that the victim cannot find any other cause except the above oriental medicine before and after the time of damage to the liver functions of the victim, in light of the fact that it was impossible to find out the cause of the liver functions of the victim at the time of the above side effect, and that if the victim was at least a hospital capable of promptly performing medical treatment for the inspection and recovery between the functions, at least the victim’s death could prevent the death of the victim from occurring.

[1] Articles 17 and 268 of the Criminal Act / [2] Articles 17 and 268 of the Criminal Act

Defendant

Park Jin-hee

Law Firm Cheongdam, Attorney Lee Han-seok

Defendant shall be punished by imprisonment without prison labor for one year.

The defendant obtained a herb doctor's license on March 10, 1992, and operated the ○○ Medical Center in substantial Gu of Cheongju-si (hereinafter omitted).

On January 9, 2009, the Defendant got the victim Nonindicted Party 1 (VL, 19 years of age) to lick.

From January 2, 2009 to the 6th day of the same month, the victim was hospitalized at the Chungcheong University Hospital due to the stimulious stimultitis in the stimulious stimultitis, which takes place at the Hayang University Hospital, but is not completely complied with. Nonindicted 2, the victim’s mother, planned the treatment of the Hanyang University Hospital, had the victim discharge the victim, and had the victim complete the reservation of the Hanyang University Hospital on January 14, 2009.

Until January 5, 2009, immediately before receiving treatment from the Defendant, the victim was under normal conditions as a result of the examination of functions conducted by Nonindicted 5 and the members of the Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Ethy Esty Esty Esty Esty Est

On January 9, 2009, based on the result of diagnosis of the victim's beer and the statement of the victim's symptoms from the mother between the victim and the victim's her mother, the defendant explained that the victim's condition "at least an immunity system due to a fire-fighting disorder" should be diagnosed as "at least", the suspension of both care and taking medicine, and the improvement of the body quality of the victim by taking medicine for one year, and the defendant prescribed each herb medicine at least three times on January 9, 2009 and March 5, 2009.

From January 9, 2009 to March 9, 2009, the injured party continued to use the herb drugs prepared by the defendant without having received treatment from the defendant from other medical institutions. From March 2, 2009 to March 2, 2009, where the above herb drugs were recovered, the injured party raised a yellow salphalal of March 2 to March 3, 2009, and complained of high heat and second salphal of them.

As can be seen, the Defendant, who was an oriental medical doctor who received treatment of the said oriental medicine, has to suspend the use of the said oriental medicine in a case where the said oriental medicine was generated along with a yellow salphal. In other hospitals prior to taking the said oriental medicine into use, he/she should examine or re-examine the details of the examination or treatment received by another hospital prior to taking the said oriental medicine into consideration, and closely grasp whether the said yellow salphal and high salphy, and double salphy are side effects arising from the use of oriental medicine. In addition, the above oriental medical doctor did not have any inspection equipment to objectively distinguish the state of the victim’s inter-functional function. As such, the Defendant had a duty of care to promptly take measures to prevent the victim’s inter-functional function from being aggravated by taking immediate treatment in a case where there is any defect through an examination of inter-functional function.

Nevertheless, on March 2, 2009 and March 3, 2009, the Defendant neglected the above duty of care and diagnosed as being toxic due to the toxicity caused by yellow sale, high tension, and double dysculatorys, but did not allow the mother and family members of the victim to move to another medical institution equipped with the inspection body, but did not allow the victim's mother and family members to move to the other medical institution with the inspection body, and continued to use herb drugs from March 3, 2009 to the 9th day of the same month, and carried out hot dyscule treatment on the ground that the victim was dead.

As a result, at around 15:30 on March 9, 2009, the victim was transferred to the emergency room of the Chungcheongnam-do University Hospital on the same day as the high fever was more severe, and around 17:00 on the same day, the victim was transferred to the emergency room of the Chungcheongnam-do University Hospital on the same day, but on March 10, 2009, the victim was transferred to the Samsung Seoul Hospital located in Gangnam-gu Seoul, Seoul, and was diagnosed with acute acute toxicity, and was diagnosed with a simplified surgery from the mother of the victim on the same day, and was not born after undergoing a simplified surgery on the same day. At around 09:08 on July 22, 2009, the victim died due to the loss of liver function by the loss of liver function at the above Samsung Seoul Hospital on the same day and the reaction of transplant conversium and the reaction of transplant conversium.

1. Partial statement of the defendant;

1. Each prosecutor's protocol of interrogation of the defendant (including Nonindicted 2's statement)

1. Each legal statement of the witness Nonindicted 2, 3, and 4

1. Each prosecutor’s statement concerning Nonindicted 2

1. Medical record sheets of the Chungcheong National University Hospital and Samsung Seoul National University Hospital;

1. A report on the inspection of the council members within Nonindicted 5

1. Each written diagnosis;

1. Each photograph;

1. Each report on investigation;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 268 of the Criminal Code, Selection of imprisonment without prison labor

1. The prosecutor and the gist of the defendant's assertion

(a) Obligation to explain;

(1) Prosecutor

On January 9, 2009, the Defendant, as an oriental medical doctor, who had a victim diagnosed and treat the oriental medicine, ought to fully explain the possibility of side effects resulting from the use of oriental medicine, such as damage of liver functions, etc. with the victim’s taking herb drugs into consideration. Nevertheless, the Defendant neglected the above duty of care and had the victim take herb drugs over three occasions, and did not explain all the side effects such as damage of liver functions, etc., and caused the Defendant to die with liver damage.

(2) Defendant

Although it is recognized that the defendant did not explain the risk that may occur when he uses herb drugs, it is not subject to the duty of explanation, or even if it is subject to the duty of explanation, the victim's death and causation cannot be recognized.

B. Summary of the defendant's assertion about the violation of the power resource obligation

The victim's condition did not require electric power resource measures such as the statement of facts constituting a crime at the beginning of March 2009, and even if the defendant neglected to take part of the necessary electric power resource measures, the causal relationship between the violation of electric power resource obligation and the death of the victim cannot be recognized.

2. Facts of recognition;

Comprehensively taking account of all the evidence submitted by the prosecutor and the defendant, the following facts can be acknowledged.

(a) The state and medical history of the victim before entering the Defendant hospital;

(1) The victim was provided medical treatment on December 11, 2008 through Nonindicted 6, to treat the contact skin infection for which the cause cannot be accurately known from around December 2008. As a result of the clinical pathology test conducted on December 12, 2008, the victim’s AS number exceeded the normal range of 68, and there was no other clinical symptoms indicating the abnormal function.

(2) On December 26, 2008, the victim was hospitalized in the Chungcheong University Hospital from January 2, 2009 to January 7, 2009, on the ground of the symptoms that the victim was born to Nonindicted Party 5 on the ground of the sacrificing of the skin and the sacrine part of the sacrife, but was hospitalized on December 27, 2008. There was no opinion or clinical symptoms to suspect abnormal function as a result of the clinical pathology against the victim during the period of outpatient treatment and the above hospitalization.

(3) On January 14, 2009, the victim agreed to provide medical treatment to the Hanyang University Hospital for the treatment of the cryposis disease after the discharge from the hospital, but on January 9, 2009, after receiving the medical treatment from the Defendant’s hospital, the victim was released from the hospital and began to receive the medical treatment from the Defendant hospital.

B. The status of treatment of the defendant hospital and the victim's condition

(1) On January 9, 2009, the victim prepared herb drugs according to the Defendant’s prescription after receiving a diagnosis at the Defendant’s hospital. At the time of the above diagnosis, the Defendant did not have any fact about the victim’s inter-functional, and there was no equipment to examine the patient’s inter-functional function at the Defendant’s hospital.

(2) From March 2, 2009, while the victim taken the above herb drugs, the victim started to appear with the symptoms of the Yellow Month. From March 5, 2009, since around March 5, 2009, the defendant showed that the situation has deteriorated to the extent that the defendant can be aware of the above herb drugs, such as yellow sale, heat, and skin sale, etc. (Although there is dispute about the time of side effect, even if the witness 2 was unable to make a statement from an objective point of view, he was consistent with his statement, and there was a location where Non-Indicted 2 was able to observe the victim accurately, the victim used salvine by the heat on March 4, 2009, and the victim appeared with salvine salvine salphys from around March 2 and 2 of 2009.)

(3) The Defendant does not have any doubt about the symptoms of the victim, or conducted any procedure for the diagnosis and treatment of liver function. In addition, even in Nonindicted 2’s inquiry into whether there is a need for complete treatment, and whether the medicine should continue to be used, it is possible to resolve the medicine only by a single bank without the help of both banks, and it is deemed that the medicine will be recovered if it is recovered, and only the treatment for the purpose of improving the fire extinguishing function, such as dynasium, high quality, and hot heat treatment, etc. was performed.

(4) However, the victim’s symptoms were repeated without apparent improvement and aggravation of his/her temporary vision and aggravation, and the victim’s symptoms began to have deteriorated rapidly since around March 15:30, 209, such as overcoming heavy pains and overcoming food and clothing.

(c) The current status of medical treatment of the Chungcheongbuk University Hospital and Samsung Seoul Hospital and the state of victims;

(1) As a result of the inspection of the status of the victim, Nonindicted 2 was diagnosed to have caused serious damage to liver functions due to chronology, such as 3,172, and ALT 885, and 80 or 90% between the victims had already lost their functions, and was diagnosed to have caused serious damage to liver functions due to chronological infection.

(2) Around 02:00 on March 10, 2009, the victim was rapidly transferred to Samsung Seoul Hospital, and as a result of the diagnosis, the victim was diagnosed to be unable to recover voluntarily without simple transplant procedures, etc. due to damage to the inter-functional function caused by chrone infection.

(3) Accordingly, the victim was undergoing a transplant surgery on March 10, 2009 between Nonindicted 2, who is the mother of Nonindicted 2, the mother of which was the victim, but in spite of the above simplified transplant surgery, the victim’s condition was not significantly improved. Ultimately, on July 2, 2009, when the victim was hospitalized for recovery after the surgery, the victim died due to a sacratal transfusion and transplant converging reaction (a immuno cell within the transplant system should be aware of the tissue cells of the transplantd patient as an resistance source and the reaction of transplant sacratium (a immuno cell within the transplant system shall be destroyed before the immunity of the transplantd patient, but where the immunogen of the transplant system is not efficiently controlled within the patient with no immunity function. In the event of the death rate, it is known that the 90% death rate of the transplant rate was about this point).

3. Determination

A. Determination as to whether there was negligence on the ground of violation of duty of explanation

Whether the inter-functional function of a patient may be damaged due to the use of oriental medicine is a sensitive part in conflict of interest among many understanding groups, and only one side is negative from the perspective of modern medicine based on the two banks. However, even though many cases are not, it is difficult to deny that a patient complaining for damage to liver function after taking herb drugs. Thus, even if such side effects are not clearly explained, the patient cannot be clearly aware that such side effects are likely to occur, so that the doctor cannot deny the duty of notifying the patient of the possibility of damage to inter-functional function due to the use of oriental medicine in advance, so that the doctor may not deny the right to self-determination of the patient’s right to self-determination where an oriental medicine doctor prescribes oriental medicine without giving prior notice. Accordingly, if an oriental medicine doctor prescribes oriental medicine without giving prior notice, it is possible to choose the method of treatment without sufficiently recognizing various side effects that may arise from the use of oriental medicine, and thus, it cannot avoid liability for infringement of the patient’s self-determination right to self-determination in the case of the victim’s family member of this case.

Meanwhile, in order to recognize the death by occupational negligence due to such violation of the duty of explanation, there should be a causal relationship between the violation of such duty of explanation and the patient's death. However, it cannot be readily concluded that the victim refused to use herb drugs and selected other treatment methods if the victim was notified of the possibility of injury to inter-functional functions in advance. Thus, the Defendant's failure to explain cannot be deemed as a direct cause of herb medication and its side effects.

Therefore, apart from imposing civil liability on the defendant on the ground that the victim and his family have been infringed on the right of self-determination to choose the best method of treatment, the causal relationship between the violation of the duty of explanation and the death of the victim cannot be recognized. Therefore, the prosecutor's claim of occupational negligence resulting from the defendant's violation of the duty of explanation is rejected.

B. Determination as to the negligence on the ground of the violation of the electric power resource obligation

When a doctor or herb doctor provides medical services, such as diagnosis, treatment, etc., he/she shall take the best measures required to prevent any danger according to the patient's specific symptoms or circumstances, in consideration of the nature of the duties of managing the patient's life, body, and health, and, if it is impracticable for the patient to provide appropriate treatment or take such measures, he/she shall take measures, etc. to transfer to another hospital

As to the instant case, the Defendant, who is a medical doctor and an oriental medicine doctor, should have examined the victim’s condition closely with the victim’s symptoms in mind, as well as with the possibility of unexpected side effects. Furthermore, if the victim complained of the symptoms above the inter-functional function together with the heat, the Defendant has a duty to have determined whether to continue treatment or change treatment methods in line with the cause and condition of the medical treatment after checking the victim’s symptoms at latest on March 5, 2009, asserting that the Defendant had known of the symptoms above the liver function. In particular, if the Defendant had no capacity to closely examine the victim’s inter-functional function in light of various circumstances, such as the inherent limits of oriental medical science, relevant regulations, etc., the Defendant should have taken necessary measures to ensure prompt examination and treatment by transferring the victim’s symptoms even after checking the victim’s conditions and conditions, and even if the Defendant had not been able to take all such measures, the Defendant should have continued to undergo examination and treatment by checking the cause and condition of the oriental medicine and to prevent any possible side effects.

Next, the defendant asserts that the damage to the inter-functional function of the victim was caused by abuse of the piracy system or by the physical self-harm of the victim, and that there was no causal link between the violation of the duty to take measures for electric power generation and the death of the victim.

In this case, it is difficult for the prosecutor to clearly determine whether the medicine prescribed by the defendant in this case had an appropriate prescription for treating the symptoms of the victim, and whether the liver function of the victim was damaged due to the above oriental medicine or not undermining the victim's liver function by the negligence in the facts charged of this case. However, there is no string that the victim had expressed at least any liver function until the herb in this case is recovered. There is no fact that the victim received other oriental medicine treatment or oriental medicine treatment while taking the medicinal medicine in this case. Nevertheless, there is no possibility that such liver function would be damaged by the liver function. Although the most majority of the medicines are inherent in the piracy system, it is very rare phenomenon that the piracy function was damaged by the piracy method, it appears that there is no possibility that the liver function would be damaged by the liver function. Furthermore, it appears that there is no clear possibility that the liver function would be damaged by the liver function of the liver occurring before and after the psychotropic medicine in this case.

If, at the time when the victim revealed side effects of herb drugs, such as yellow algos and high tensions, the defendant was able to rapidly suspend the use of herb drugs by the victim and promptly take measures to transfer to a hospital capable of performing liver function inspection and treatment for recovery from liver function, at least the victim’s death could have been prevented. Even if the death of the defendant in domestic affairs was caused by abuse or physical sculic sculic sculs, not by herb drugs, unless such aggravation of piracy was caused by a serious cause to the extent that it is significantly impossible to cure it as a modern medical science, so long as it was found that the aggravation of liver function was able to find the cause through prompt inspection and remove it, or at least 80% of liver function was damaged, the situation of malmical sculs in which the victim could recover the liver function, as seen earlier, could be avoided at least by source, and the defendant continued to recognize the situation of the victim’s death to the extent that it is sufficiently impossible to recognize the causal relationship between the victim’s disease and negligence.

Furthermore, the Defendant asserts to the effect that the cause of the victim’s death was caused by abnormal immunity after a simple transplant surgery, and that it does not result from the Defendant’s violation of the duty of full source of power. However, the Defendant’s negligence, which is the preceding cause, is not denied, since a failure of the treatment method of a simple transplant surgery selected as the last means, is merely a direct private person of the victim’s death.

Therefore, as seen earlier, the defendant can fully recognize the causal relationship between the negligence in violation of the duty to take all measures against the victim and the negligence and the death. Therefore, the defendant's assertion against this can not be accepted.

Medical personnel are only human beings who can be lost at any time in an unexpected situation. Accordingly, a victim’s death due to medical malpractice is a case in which anyone does not refuse to experience. However, as long as a doctor intentionally neglects to treat or directly provides a private person with a fatal negligence, it does not necessarily require the Defendant to be subject to a severe punishment by criticism only such negligence.

However, the Defendant does not deny not only the investigation agency but also the victim's mistake to the end of this court, and does not have any attitude of reflecting the victim's bereaved family members at all, and there is no part of his wrong, so his bereaved family members need not be paid compensation as well as any negligence. Of course, since the defendant's right of defense is guaranteed, it does not necessarily necessarily reflect the criminal facts in sentencing. However, the Defendant's behavior, which is seen from the court, has given up being provided as the society of one person before the medical personnel is a single person, and therefore, the victim's bereaved family members have not been cured of his or her situation due to his or her damage and her abduction and pain.

Therefore, the defendant cannot be held liable for all reasons other than himself/herself, and the defendant cannot be held liable for any reason other than himself/herself, and the equivalent punishment is deemed inevitable. Therefore, the defendant is sentenced to the punishment as ordered in consideration of the circumstances after such crime is committed.

Judge So-young