Medical Corporations, Mine-Hyh Medical Foundation (Attorney Yoon Jin-jin et al., Counsel for defendant-appellant)

social welfare foundation streak et al. (Law Firm Shinsung, Attorneys Park Young-ju, Counsel for the plaintiff-appellant)

September 28, 2012

Busan District Court Decision 2010Gadan96535 Decided September 8, 2011

1. The part of the judgment of the court of first instance against the Defendants shall be revoked.

2. The plaintiff's claims against the defendants are all dismissed.

3. The Plaintiff is responsible for total costs of litigation between the Plaintiff and the Defendants.

The Plaintiff shall pay 20,771,360 won, Defendant 2, Defendant 3, and Defendant 4, jointly and severally with the Defendant’s Posty tree, 6,923,786 won and each of the said money, calculated at the rate of 20% per annum from the day after the delivery of a copy of the instant complaint to the day of full payment.

The same shall apply to the order.

1. Basic facts

A. Conclusion of business agreements between the Plaintiff and the Defendant Welfare Corporation

1) The Plaintiff is operating a △△ Hospital in the Dong-gu Busan Metropolitan City ( Address 1 omitted), and the Defendant’s welfare foundation (hereinafter “Defendant welfare foundation”) operates the ○○ Elderly’s sanatorium (hereinafter “○○○○○○”) in the Busan Metropolitan City ( Address 2 omitted).

2) On July 3, 2008, the Plaintiff and Defendant welfare corporation concluded a business agreement (hereinafter “instant business agreement”) with the purport that the Plaintiff will return the patient to ○○○ Hospital in the event of an emergency patient at ○○○○○○○○○○ Hospital to undergo medical treatment, and that the Plaintiff would, if necessary, provide hospital treatment and, if necessary, return the patient to ○○○○○○○○ Won.

3) At the time of the conclusion of the instant business agreement, the Plaintiff agreed not to claim for the nursing expenses incurred for the patients sent after the Defendant welfare corporation.

B. Nonparty 1’s injury

1) At the time of 2008, Nonparty 1 was unable to communicate with the aged of 90 years, and all the right body of Nonparty 1 was mae due to the brain from 2006, which occurred in 2006, and both high-level and kneeing were in a state of being in need of other person’s assistance in the daily life, such as drinking water, frighting, eating, planting, and eeling (hereinafter “existing disability of this case”).

2) Accordingly, on August 5, 2008, Defendant 4’s wife Nonparty 2, who is Nonparty 1’s children, entered Nonparty 1 into the ○○○○○○○○○○○○○○○○○ Medical Center. On September 27, 2008, Nonparty 1, who moved to Nonparty 1’s wheelchairs, caused an accident where the upper part of Nonparty 1’s right upper part of Nonparty 1’s body was faced with a food board, was cut off (hereinafter “instant frame”).

C. Hospitalization and treatment of Non-Party 1’s △ Hospital

1) On September 28, 2008, the Defendant Welfare Corporation hospitalized Nonparty 1 to the Busan Shipping Daegu Do Council members for the treatment of the instant charnel, and received the treatment for the instant charnel. As the situation has deteriorated later, on October 7, 2008, the Defendant Welfare Corporation’s employees Kim real-ju hospitalized Nonparty 1 to the △△ Hospital and received the treatment for the instant framework.

2) Around November 2008, the treatment of the instant aggregate was completed, and the doctor in charge of △△ Hospital decided to discharge Nonparty 1, but Nonparty 1 continued to be hospitalized in △△ Hospital upon Nonparty 1’s request from Nonparty 1’s guardian (it cannot be identified as one of Nonparty 2, Defendant 3, and Defendant 4, who is the children of Nonparty 1).

3) On February 6, 2009, the treatment of the instant aggregate was completed, and only the preservation of the instant existing disability was completed.

4) On May 8, 2010, Nonparty 1 died from the old exchange at △△ Hospital.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 4, 6, 7, 8, 12, 13, Eul evidence 1 through 4, 6, 7, 8, 9 (including additional numbers), non-party 4, non-party 5, and non-party 6's testimony and the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff asserts the following grounds for the claim of this case.

A. From October 7, 2008 to May 8, 2010, Nonparty 1 received hospitalized treatment at △△ Hospital and incurred a total of 30,182,810 won as listed below (i.e., nursing expenses of KRW 14,475,00 + other medical expenses of KRW 15,707,810), and the Plaintiff was paid KRW 9,41,450, 20,71,360 (=30,182,810 -9,41,450) from October 7, 2008 to February 6, 2009, and the Plaintiff was not paid the remainder of KRW 20,71,360 (=30,182,810 -9,411,450).

On October 7, 2008, the amount of nursing expenses for the period of hospitalization included in the main sentence is 1,400,00 on February 6, 2009, 3,075,000,000,411,450 9,411,450,450 3,075,000 on February 7, 2009 to May 8, 2010, 2006, 296, 360, 14,475,00 on the aggregate of 14,46,360, 17,696,360, 360 15,707,8109,411,450, 20,771,360

B. Therefore, Defendant welfare corporation is a party who entered into a medical treatment contract with the Plaintiff as a guardian of Nonparty 1 in △△ Hospital, and is a joint and several surety for the treatment expenses of Nonparty 1, who is obligated to pay the Plaintiff medical expenses of KRW 20,771,360 and damages for delay.

C. In addition, Defendant 2, Defendant 3, and Defendant 4, as Nonparty 1’s children who entered into a medical contract with the Plaintiff, have succeeded to one third of the obligations to pay KRW 20,771,360 for medical expenses of Nonparty 1, respectively, and thus, they are obligated to pay the Plaintiff medical expenses (=20,771,360 won x 1/3) and damages for delay.

3. Determination as to the claim against the defendant welfare corporation

A. Determination as to the claim for medical expenses as a party to a medical contract

1) Establishment of a medical treatment contract between the Plaintiff and the Defendant’s welfare corporation

In full view of the following circumstances, namely, that is, Nonparty 1’s negligence of the caregiver of the Defendant welfare corporation, caused the Plaintiff to bear the medical expenses. Accordingly, on October 7, 2008, the Defendant welfare corporation: (a) hospitalized Nonparty 1 into △△ Hospital to receive treatment for the instant charnel; (b) at the time, Nonparty 1 dealt with the procedures necessary for hospitalization, such as the preparation of a written hospitalization agreement; and (c) took full account of the fact that Nonparty 1 had no capacity to perform such procedures due to the instant existing disability and the instant charnel, it is reasonable to deem that the Defendant welfare corporation concluded a medical contract with the Plaintiff on the instant charnel by entrusting the Plaintiff with the medical treatment of the instant charnel of the Plaintiff.

2) Determination as to the claim for nursing expenses of KRW 3,075,000 from October 7, 2008 to February 6, 2009

A) The Defendant welfare corporation is a party who entered into a medical treatment contract with the Plaintiff for the instant Aggregate, and is obligated to pay KRW 3,075,000 for nursing expenses incurred from October 7, 2008 to February 6, 2009, which is the treatment period for the instant Aggregate, to the Defendant welfare corporation, barring special circumstances. However, while the Plaintiff entered into the instant business agreement and agreed not to claim for nursing expenses incurred to the patients sent back to the Defendant welfare corporation, the Defendant welfare corporation does not ultimately bear the obligation to pay KRW 3,075,00 for nursing expenses.

B) Therefore, the Plaintiff’s claim on this part is without merit.

3) Determination on the claim for medical expenses of KRW 17,696,360 from February 7, 2009 to May 8, 2010

A) On October 7, 2008, the Defendant Welfare Corporation entrusted the Plaintiff with the treatment of Nonparty 1’s instant charnel, which was terminated on February 6, 2009, and thereafter, only the preservation of Nonparty 1’s existing disability of this case was conducted as seen earlier. As such, the Defendant Welfare Corporation is not obliged to pay KRW 17,696,360 for medical expenses incurred from Nonparty 1’s existing disability from February 7, 2009 to May 8, 2010.

B) The Plaintiff asserts that the Defendant welfare corporation is obligated to pay KRW 17,696,360 of the above medical expenses because the Defendant welfare corporation entrusted the Plaintiff with the preservation of the existing disability of this case. However, as shown above, the Defendant welfare corporation’s evidence Nos. 2-2 (a medical care ward’s pledge consisting of the Defendant welfare corporation’s staff member’s staff member) cannot be used as evidence since there is no evidence to acknowledge the authenticity, and there is no other evidence to acknowledge this. Thus, the Plaintiff’s above assertion is without merit (or was concluded on Nov. 1, 2008, and the medical doctor of △△△△ Hospital decided to discharge Nonparty 1, but was hospitalized at the request of Nonparty 1’s guardian, and the fact that Nonparty 1 continued to be hospitalized at △△ Hospital is possible to have concluded the contract on the existing disability of this case between the Plaintiff and Nonparty 1’s guardian).

C) Therefore, the Plaintiff’s claim on this part is without merit.

B. Determination on the claim for medical expenses as a joint and several surety of Nonparty 1

As seen below, the Plaintiff and Nonparty 1 cannot be deemed to have concluded a medical treatment contract for the instant frame and the instant existing disability, and there is no evidence to support that Defendant welfare corporation jointly and severally guaranteed the Defendant’s obligation to pay medical expenses to Nonparty 1 on the premise of the establishment of the above medical treatment contract (as seen earlier, the Defendant welfare corporation entered into a direct medical contract with the Plaintiff on the instant framework). Therefore, the Plaintiff’s claim for this part of this case is without merit.

4. Determination as to claims against Defendant 2, Defendant 3, and Defendant 4

There is no evidence to prove that the Plaintiff and Nonparty 1 entered into the instant framework and the instant existing disability contract, and, after Nonparty 1’s care was provided at △△ Hospital on the consignment by the Defendant’s welfare corporation with the treatment for the instant framework, and the treatment for the instant framework was completed, it cannot be said that the instant framework and the instant existing disability contract was concluded on the sole basis that Nonparty 1’s guardian was provided with treatment for the instant existing disability as Nonparty 1’s guardian’s refusal to discharge. Thus, the Plaintiff’s claim against Defendant 2, Defendant 3, and Defendant 4 premised on such premise is without merit.

5. Conclusion

Therefore, the plaintiff's claim against the defendants shall be dismissed in its entirety without any justifiable reasons. Since the judgment of the court of first instance is unfair with different conclusions, the part against the defendants in the judgment of the court of first instance shall be revoked and all of the claims against the defendants shall be dismissed. It is so decided as per Disposition.

Judges Hatho (Presiding Judge) Kim Batho

Judges Kim Jong-Un and Due to Childbirth are unable to sign and seal