[1] The meaning and evaluation method of the level of medical care, which serves as a basis for doctor's duty of care in medical practice

[2] Criteria for determining whether a doctor is negligent in medical treatment

[3] The burden of proof of negligence and causation in the medical lawsuit

[4] Whether a doctor bears an obligation to explain risks that may arise when a doctor executes only a mass appearance to a woman (negative)

[1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act / [3] Article 750 of the Civil Act / [4] Article 750 of the Civil Act

[1] Supreme Court Decision 98Da45379, 45386 decided Mar. 26, 199 (Gong1999Sang, 772) Supreme Court Decision 2004Da13045 decided Oct. 28, 2005 (Gong2005Ha, 1854) / [2] Supreme Court Decision 91Da23707 decided May 12, 1992 (Gong1992, 1831), Supreme Court Decision 2005Da5867 decided May 31, 2007 (Gong2007Ha, 915 decided Apr. 13, 199) / [3] Supreme Court Decision 98Da915 decided Apr. 13, 2005 (Gong1999; Supreme Court Decision 863Da5949 decided Apr. 19, 205)

Plaintiff 1 and three others (Law Firm Newro, Attorneys Cho Yong-hoon et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Attorney Jeong-hun et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2006Na12129 Decided August 22, 2007

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to medical malpractice

A. A physician has a duty of care to take the best measures required to prevent risks depending on the patient’s specific symptoms or circumstances in light of the nature of the duties of managing the patient’s life, body, and health, and such duty of care is based on the level of medical practice performed in the clinical medicine field including a medical institution at the time of the medical practice. The level of medical care refers to the so-called medical consciousness generally known to and known to ordinary doctors at the time of the medical practice. Thus, it should be grasped at a normative level in light of the medical environment, conditions, characteristics of the medical practice, etc. (see, e.g., Supreme Court Decisions 98Da45379, 45386, Mar. 26, 1999; 2004Da13045, Oct. 28, 2005).

In addition, in performing medical treatment, a doctor shall have the reasonable discretion to choose the method of medical treatment as deemed appropriate based on the patient’s situation, the current medical level, and his knowledge and experience, and it shall not be deemed that only one of them is justified and any other measure is negligent (see, e.g., Supreme Court Decisions 91Da23707, May 12, 1992; 2005Da5867, May 31, 2007).

Meanwhile, in order to establish tort liability caused by a mistake in medical practice, it should be proved that there exists a violation of a duty of care and damage, as in general cases, and there is causation between them. Thus, even if the patient suffered damage in the course of receiving medical treatment, considering the special nature of the medical practice, if the patient suffered damage, there was a medical negligence in the series of medical practice, and the patient should prove first of all that there was no other cause between that act and the damage did not occur (see Supreme Court Decisions 98Da915, Apr. 13, 199; 2003Da50610, Dec. 12, 2003, etc.).

나. 제1심판결을 인용한 원심은 그 채택 증거를 종합하여, ① 원고 3이 2000. 10. 17.경 자궁 내 인공수정을 통하여 세쌍둥이를 임신하였고 선택유산을 시행하여 2000. 12. 6.경 쌍태아를 포태한 사실, ② 2001. 5. 1. 17:20경 임신 30주 4일째인 원고 3이 조산의 징후를 보이자 피고가 운영하는 ○○대학병원(이하 ‘피고 병원’이라고 한다)의 의사 소외인이 초음파검사를 실시하였는데 두 태아의 태위가 모두 두정위로 정상이고 양수가 적당하며 태아심박동수도 정상으로 관찰된 사실, ③ 의사 소외인이 같은 날 23:30경 원고 3과 그 남편인 원고 2에게 원고 3의 상태를 설명한 후 질식분만을 시도하기로 하였고, 응급상황에 대비하여 제왕절개수술 준비도 함과 아울러 조산되는 신생아의 치료를 위해 소아과 의사를 분만실에 대기시킨 사실, ④ 의사 소외인이 2001. 5. 2. 05:00경 원고 3을 분만장으로 옮겨 질식분만을 시도하였고 같은 날 05:10경 원고 4가 체중 1.4㎏의 미숙아로 출생한 사실, ⑤ 원고 4를 분만한 후 다시 초음파검사를 한 결과 원고 1의 위치가 질식분만에 적절하지 않은 위치로 바뀐 것이 확인되었을 뿐만 아니라 태반조기박리의 소견까지 나타나자 의사 소외인이 질식분만을 중단하고 응급제왕절개수술을 실시하여 같은 날 05:35경 원고 1이 체중 1.46㎏의 미숙아로 출생한 사실, ⑥ 원고 1이 출생 직후 호흡곤란 증세를 보여 피고 병원이 기관 삽관 및 심폐소생술을 실시하고 신생아보육기를 이용하여 산소 공급 및 체온 유지의 조치를 취한 사실, ⑦ 원고 1에 대한 아프가(Apgar) 점수(신생아의 상태를 반영하는 지표로 생후 1분과 5분에 각 측정하는데, 상태가 양호한 경우는 7 내지 10점, 호흡기능이 감소하고 무기력하며 창백하거나 청색증을 띠는 경우에는 4 내지 6점, 심박동이 느리고 잘 청진되지 않으며 반사반응이 저하되거나 소실되어 인공호흡 등의 소생술을 즉시 시행하여야 하는 경우에는 0 내지 3점으로 평가된다)가 생후 1분에는 2점, 5분에는 5점으로 각 측정된 사실, ⑧ 원고 1이 미숙아, 극소 저출생체중아, 신생아 가사, 신생아 호흡곤란증후군, 신생아 황달, 신생아 괴사성 장염 등의 진단이 의심되어 소아중환자실에서 미숙아에 대한 전반적인 치료(인공호흡기치료, 항생제치료, 광선치료, 수액 및 전해질 공급 등)를 받은 사실, ⑨ 원고 1에 대한 뇌 초음파검사 결과 2001. 5. 8. 경미한 뇌수종을 동반한 뇌실 주변의 백반흑색종이 관찰되었고, 2001. 5. 25. 약 1㎝ 크기의 우측 뇌실막하 배아기질의 혈종이 관찰되었으며, 2001. 6. 13. 우측 약 0.8㎝, 좌측 약 0.6㎝ 크기의 뇌실막하 배아기질 혈종이 관찰된 사실, ⑩ 원고 1이 울음, 움직임, 수유양상 등이 양호해지고 체중이 2.78㎏로 증가하자 2001. 6. 19. 퇴원했는데, 그 후 2002. 8. 6. 뇌성마비를 원인으로 한 뇌병변 장애 1급의 진단을 받은 사실, ⑪ 임신과 관련된 뇌성마비 발생 원인으로는 쌍생아, 조산, 발육부전, 부당 경량아, 선천성 이상, 태위의 이상, 태반조기박리, 산모의 용모막염, 주산기 가사, 자궁 내 감염 등이 있는 것으로 알려져 있으나 뇌성마비의 원인이 명확히 규명된 바는 없는 사실을 인정하였다.

Based on this, the court below determined that the defendant hospital did not choose the king surgery for the plaintiff 3's delivery, but did not have any negligence in selecting the king surgery for the plaintiff 3's delivery, and that there was no negligence in failing to take prompt delivery measures with the plaintiff 1's delivery by implementing the emergency sking surgery for the plaintiff 4 delivery and the plaintiff 1's delivery after the 25 minutes delivery, and that there was no negligence in failing to take prompt delivery measures, and that there was no relation between the king household affairs (the sum of the fetus's house and the newborn baby's house that the fetus was placed in a domestic state due to the lack of oxygen and the birth of the plaintiff 1) and the cerebral mathy household affairs generated by the plaintiff 1.

C. The judgment of the court below is based on the above legal principles and evidence duly admitted by the court below, that is, ① all the attitudes of two fetuses were normal, proper to take over, and the fetus heart waterworks was normal before the non-party implemented the quality food portion. Under such circumstances, only the quality food portion is generally accepted by the medical science; ② preparation for the king operation may be conducted in preparation against the occurrence of an emergency, such as an abortion during the mass delivery; however, it is not a way of delivery generally accepted by the medical science; ③ the non-party prepared the king operation before the implementation of the king operation; ③ the non-party prepared the king operation before the mass delivery; the opinion of the plaintiff 4 was presented immediately after the childbirth; and ④ the plaintiff 1 was unable to be found to have been born due to the lack of legitimate grounds for appeal, such as the supply of the plaintiff 4, and it is not possible for the plaintiff 1 to be found that the king operation could not be implemented due to the birth of the plaintiff 4, as well as due to the lack of legitimate grounds for appeal.

2. Regarding breach of duty to explain

A. In general, in cases where a doctor performs a medical act that is likely to cause bad results, such as surgery, etc. to a patient, or where a doctor performs a medical act that is anticipated to cause bad results, such as death, etc., he/she is obligated to explain the relevant patient or his/her legal representative on the premise that he/she or his/her legal representative is required to obtain consent to an obligation under a medical contract or an invasion, etc., unless there is an emergency patient or any other special circumstance, in light of the level of medical care at the time with respect to the symptoms of the disease, treatment method and necessity, anticipated risks, etc., and to allow the patient or his/her legal representative to sufficiently compare the relevant necessity or risk and make the patient choose whether to receive the medical act. Where a doctor loses an opportunity to choose whether to receive the medical act because he/she fails to explain, he/she is liable to compensate for consolation money, etc. accordingly, but there is no room for violation of a doctor's duty to explain (see, e.g., Supreme Court Decisions 94Da27151, Apr. 25, 2095>

In a case where it is deemed necessary to conduct a king operation because it is probable that the life, body, etc. of a woman in child or fetus may cause serious danger to the life, body, etc. of a woman in child or fetus, barring any special circumstance, a doctor has a duty to explain the anticipated risk when he/she conducts a king operation by means of alternative delivery, and the anticipated risk when he/she conducts a king operation. However, if he/she does not conduct a king operation, he/she is naturally and in principle only a king operation, it cannot be said that a doctor violated the mother's right to self-determination by failing to explain the risk, etc. that may occur when he/she conducts a king operation.

B. In full view of the adopted evidence, the court below determined that the defendant hospital cannot be deemed to have violated its duty of explanation after explaining the status of plaintiff 3, such as the result of the early test on the first day of April 21, 2001 and receiving medical treatment from the non-party of the doctor's first time at the defendant hospital. The non-party of the doctor at the time recommended the plaintiff 3 to attempt only the quality part if the plaintiff 3 continued to be hospitalized in the women's hospital on the ground that there is concern about early childbirth. The court below acknowledged that around May 1, 2001, around 23:30, the non-party of the doctor determined that the plaintiff 3 and the non-party of the plaintiff 2, who was her husband, should explain the status of the plaintiff 3, such as the result of the early test on the first day, and decided that the part of the plaintiff 2, who was her husband, cannot be deemed to have violated its duty of explanation. However, it is justified in light of the above legal principles, and it is not erroneous in the misapprehension of legal principles as to affect the judgment.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)