2014 Gohap7052 Compensation (Definition)

1. Kim○-○

2. ○○

Plaintiffs’ Address Incheon

[Judgment of the court below]

[Judgment of the court below]

Ma-○

City City:

Attorney Kim Sung-ju, Counsel for the plaintiff-appellant

Attorney Lee Jae-soo et al.

March 8, 2016

March 29, 2016

1. The defendant shall pay to the plaintiff Kim ○, 25, 883, 681 won, the plaintiff Lee ○○, the amount of KRW 2,00,000, and each of them shall be 5% per annum from July 6, 2013 to March 29, 2016, and 15% per annum from the next day to the day of full payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. Of the costs of lawsuit, 4/5 are borne by the Plaintiffs, and the remainder by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay 181, 111, 157 won to the plaintiff Kim ○○, and 50,000 won to the plaintiff Lee ○○, respectively, and 50,000 won per annum from July 6, 2013 to the day following the delivery of a copy of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 15% per annum from the next day to the day of full payment.

1. Basic facts

A. Status of the Parties

Plaintiff ○○○○ was a person who received the removal of the conical signboards from No. 4 to No. 1 in the ○○ Hospital (hereinafter “Defendant Hospital”) operated by the Defendant and the removal of the conical signboards from the 1st century and the artificial disc repacting (hereinafter “the instant subpact”). Plaintiff ○○ is the wife of Plaintiff ○○○, and the Defendant is the Plaintiff ○○○. The Defendant is the Plaintiff ○○.

It is a doctor who has performed the instant surgery to ○.

B. Progress of the instant surgery

1) On April 30, 2013, Plaintiff Kim ○○ filed an appeal for the instant surgery, and received the instant surgery from the Defendant on July 6, 2013.

2) However, on August 1, 2013, Plaintiff Kim ○ received the diagnosis of “ male fluence” at the Kando Hospital, and on September 13, 2013, at the Kando Hospital, he was diagnosed by “a male fluence caused by other causes” and “a part of the reaction to reproductive organs,” and even though the transfer was fluence, even though the transfer was fluences, the situation of the fluences and reverse dynamics (the closure of a male bluence or the outer bruence was incomplete, and the fact that the closure of a male bluence level or the external bruence was excessively advanced, shows that it was above (hereinafter referred to as “the instant disability”).

3) On the other hand, on February 2, 2014, Plaintiff Kim ○ was diagnosed as “adaptation disorder” at the Gyeong Hospital and observed emotional problems and physical symptoms, such as the decline of memory caused by the stresse, the depression, and the satisfaction of complaints, and shows a decline in the ability to adapt to daily life.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1 through 3, evidence Nos. 3 through 5, evidence Nos. 6-1 through 4, evidence Nos. 7-1 to 9-1, 2, and evidence Nos. 9-2, evidence Nos. 1 to 5, and evidence Nos. 4, 7-1 to 6-1, 2, and 9-2, the result of the examination of the medical records on the Seoul Hospital at the 1,000 Seoul University, the result of the examination of the medical records on the New Village Nos. 3 to 5,

2. The parties' assertion

A. The plaintiffs' assertion

In the course of the instant surgery, the Defendant caused the instant trouble by damaging the upper vice-principal of Plaintiff Kim○○, thereby causing the instant trouble. Accordingly, the Plaintiff Kim○○ was diagnosed with a male ster, a contribution advance, and a adaptation disorder. In addition, the Defendant did not sufficiently explain the instant disability to the Plaintiff Kim○○ before the instant surgery. Therefore, the Defendant suffered physical or mental damage due to the Defendant’s tort, thereby claiming against the Defendant that the Defendant pay the Plaintiff Kim○○ KRW 181, 111, 157, and the compensation for damages incurred by the relevant tort, and that the Defendant paid the Plaintiff Kim○○○ KRW 50,000,000, and damages for delay on each of the said money.

B. The defendant's assertion

The instant disability is not attributable to the Defendant due to the fact that it is difficult to see that it would normally occur after the instant surgery, due to the fact that it is difficult to see the Defendant.

3. Occurrence of liability for damages;

A. Whether medical malpractice is medical malpractice

1) Criteria for judgment

In the case of claiming compensation for losses on the ground that a doctor’s medical practice constitutes a tort due to his/her breach of duty of care, there should be causation between negligence in the medical practice and the occurrence of damage as in the general tort. The burden of proof is borne by the patient’s side. However, the medical practice is an area requiring highly specialized knowledge, which is not an expert, whether the doctor’s duty of care was breached in the medical practice process, or whether the medical practice was done by a general person, other than an expert,

Since it is extremely difficult to find out whether there exists a causal relationship between the occurrence, if there is an indirect fact that is difficult to deem that there is a reason other than medical negligence in the event of symptoms causing serious results to a patient after an operation or an operation, if there is such indirect fact as to the occurrence of such symptoms, it can be presumed that such symptoms are based on medical negligence (Supreme Court Decision 2006Da31489 Decided April 2

July 7, 2000 (see, e.g., Supreme Court Decision 99Da66328, Jul. 7, 2000).

2) Negligence in the course of the instant surgery and whether there exists causation with the instant disability

In full view of all the aforementioned evidences, 1) Plaintiff Kim○ was a young male at the time of the instant surgery, and there was no material to find out that Plaintiff Kim○ had a dynamic situation before the instant surgery, and 2) Plaintiff Kim○ was diagnosed with the instant disability immediately after the instant surgery, and the instant disability was not caused by this case’s surgery, but was closely connected with the instant surgery’s assistant principal and vice-principal (Supior Hpogastric Symus)’s symptoms that may arise at the front of the instant surgery, and it appears that it would be difficult for the Defendant to see that there was any other cause between the instant surgery and the instant surgery’s vice-principal during the instant surgery, and that it would be difficult for the Defendant to see that the instant merger was likely to occur during the instant surgery’s overall surgery, and that there was a lack of 20% probability of causing any harm to the Plaintiff’s assistant vice-principal during the instant surgery, as it could normally occur during the instant surgery.

However, in full view of the following circumstances acknowledged by the aforementioned evidence and the purport of the entire pleadings, namely, Plaintiff Kim ○ does not have any sexual relationship, but have symptoms before the formation of the donation, and the origin and circumstances of the Plaintiff Kim ○, which might have been passed up, but it is difficult to view that the operation of the instant case caused the Plaintiff Kim ○○ by the instant surgery to have caused the birth of the child, and the symptoms before the formation of the donation, by taking account of the following: (a) the birth and circumstances were possible; (b) the sperm was created out of the need not have been distributed; and (c) the extraction of the sperm is expected to have the ability of the child to give birth.

Furthermore, according to evidence No. 9-1 and No. 9-2 of the Health Team, it is not sufficient to recognize that the above adaptation disorder was caused by negligence in the operation of the instant case, and there is no other evidence to acknowledge it. Thus, it is difficult to accept the plaintiffs' assertion on this part on the premise that the above adaptation disorder was caused by negligence in the operation of the instant case.

B. Whether the duty of explanation is violated

In general, when a doctor performs a medical act that is highly likely to cause a bad result, such as surgery, etc. to a patient, he/she is obligated to explain to the patient concerned or his/her legal representative the symptoms of a disease, the contents and necessity of the method of treatment, the potential risks of the occurrence, etc. at the present medical level, and to sufficiently compare the necessity and risks of the patient concerned so that the patient concerned can choose whether to receive the medical act or not. The burden of proving the performance of the duty to explain lies on the doctor unless there are special circumstances (see Supreme Court Decision 2005Da5867, May 31, 2007).

In light of the above legal principles, in full view of the purport of the statement No. 1-4 and the entire argument No. 1-4, the medical personnel of the Defendant Hospital explained to the Plaintiff Kim○○ prior to the instant surgery, in detail, the name of the instant surgery, the method and time of operation, the anticipated progress after the surgery, and the merger certificate, including the instant obstacles, etc., and it can be acknowledged that Plaintiff Kim○○ was directly signed in the written consent for the surgery to the effect that the instant surgery would be conducted. Thus, the Plaintiffs’ assertion of violation of the duty to explain is rejected.

C. Limitation on liability

As seen earlier, as the Defendant caused the instant accident to Plaintiff Kim○-○ by negligence in the course of the instant surgery, the Defendant is liable for each tort against Plaintiff Kim○-○, who suffered direct damage.

However, even if the harmful act and the factors of the injured party are associated with the risk of the victim's physical injury or disease, and it is irrelevant to the cause of the injured party, such as the risk of the disease, if it is contrary to the principle of fairness to compensate the perpetrator for the whole damage in light of the form, degree, etc. of the disease, the court shall apply the legal principle of comparative negligence to determine the amount of compensation, thereby taking into account the factors of the injured party who contributed to the occurrence or expansion of the damage (see, e.g., Supreme Court Decision 2005Da16713, Jun. 24, 2005). The following circumstances, which are acknowledged by comprehensively considering the overall purport of each of the arguments, are acknowledged as follows, namely, even if the disability of this case is not a stimulated merger that may occur through the operation of this case, but it seems that there was a risk of causing the occurrence of the harm itself due to the occurrence of the harm of this case's intention, etc.

4. Scope of liability for damages

Unless otherwise indicated in the below, the calculation of the period for the convenience of calculation shall be calculated on a monthly basis, and less than a month shall be included in the side on which the appraised value is less than the last month and less than the last won shall be discarded, respectively, and the present price calculation at the time of the operation of this case shall be calculated by deducting the intermediate interest at the rate of 5/12 per month.

The discount law shall apply, and the amount of less than won shall be discarded.

A. The plaintiff Kim ○-○'s lost income

1) Facts of recognition and details of evaluation

A) Gender and date of birth: Male, 1979, 0. 0 ○. birth

(b) Age at the time of an accident: 34 years of age and 0 months;

C) Maximum working age: By 039, a day on which the maximum working age reaches 60 years of age, 039 ○.

D) Occupation and income: Plaintiff Kim ○○ had monthly income from KRW 2,90,000 as office staff around the instant surgery.

(e)the ratio of residual disability and labor capacity loss;

5% of the labor disability rate due to reverse dynamics [this case’s 0% disability rate is difficult to view the victim’s 0% disability rate due to various evidence, including doctor’s appraisal results, and thus, the victim’s specific degree and degree of education, occupational character and skill training, possibility of occupational change to other types of occupation, its probability, and other social and economic conditions, etc. In light of the empirical rule, it is necessary to periodically evaluate and determine the loss rate in accordance with the appraiser’s appraisal result. (See Supreme Court Decisions 80Da2141, Feb. 10, 198; 94Ga25810, Aug. 26, 1994, etc.). However, according to the above legal principles, it is difficult to apply the Plaintiff’s 00 square meters rate to the Plaintiff’s 1st appraisal of mental disability due to the Plaintiff’s 1’s climatic climatic climatic climatic climatic clible.

[Ground of recognition] Facts without dispute, each evidence mentioned above, Gap's evidence No. 17, the purport of the whole pleadings

2) Calculation: 28, 691, 425 won ( = monthly income 2, 900, 000 x 5% x heading x 5% x 19719)

B. Wangl medical expenses: KRW 1,142, and 406 (Plaintiff Kim○○ claimed compensation of the amount equivalent to KRW 14,527, and 800 for the purpose of supporting the symptoms of the disease of one-time disc, but the above assertion that the assertion itself does not have merit is not considered in the calculation of the treatment expenses of the period).

BUBD 42, 883 won

Korea Labor Welfare Corporation 270, 100 won

Japan Hospital 829, 423 won

C. Limitation on liability

1) The defendant's ratio of liability: 70%

2) Calculation

A) passive damages: 20,083, 997 won ( = 28, 691, 425 won x 70%)

(b) Active damage: 799, 684 won ( = 1,142, 406 won x 70%)

(c) Total amount: 20,883, 681 won;

D. Whether to grant a deduction

The defendant paid the insurance benefits (hereinafter referred to as "industrial accident insurance benefits") under the Industrial Accident Compensation Insurance Act (hereinafter referred to as the "Industrial Accident Insurance Act") to the plaintiff Kim Il-○, and the defendant asserted that the amount equivalent to the part of the insurance benefits should be deducted from the amount of damages, as the Korea Workers' Compensation and Welfare Service subrogated the right to seek compensation against the defendant of the plaintiff Kim Il-○ within the scope of payment of the industrial accident compensation benefits.

In this case, if the Korea Workers' Compensation and Welfare Service paid the industrial accident insurance benefits to the plaintiff Kim ○, who is an employee due to an act of a third party, such as the defendant, pursuant to Article 87 of the Industrial Accident Insurance Act, it may exercise the right to claim damages against the defendant of the plaintiff Kim ○, who is identical with the industrial accident insurance benefits within the limits of the amount of benefits pursuant to Article 87 of the Industrial Accident Insurance Act. However, according to the evidence Eul No. 2, only the fact that the plaintiff Kim ○ received the industrial accident insurance benefits from the Korea Workers' Compensation and Welfare Service, including the obstacles in this case, is recognized, and there is no data to the effect that the plaintiff Kim ○ received the industrial accident insurance benefits with a specific content from the Korea Workers' Compensation and Welfare Service due to the obstacles in this case. If there is a circumstance, the defendant can find

Unless there is a specific assertion or proof on this, the above claim for mutual aid shall not be accepted.

(e) Condolence money;

1) Reasons for consideration: The background and result of the occurrence of the disability caused by the instant surgery, the parts and degree of the disability of Plaintiff Kim○-○, the age and present status of the Plaintiffs, the degree of the Defendant’s medical malpractice, and other cases.

Various circumstances shown in pleadings

2) Amount of consolation money: Plaintiff Kim○○○○ 5,00,000,000 won, Plaintiff Lee ○○ 2,000,000 won

F. Sub-committee

Therefore, the Defendant, as compensation for damages, is obligated to pay damages at the rate of 25,883,681 won ( = property damage = 20,883, 681 won + consolation money + KRW 5,00,000) to the Plaintiff Lee ○, the Plaintiff of this case, as well as 2,00,000 won, which is the date of the instant tort, until July 6, 2013, which is the date of the instant judgment, against the existence and scope of the Defendant’s duty to perform, 5% per annum under the Civil Act until March 29, 2016, and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day until the date of full payment.

5. Conclusion

Therefore, the plaintiffs' claims against the defendant are reasonable within the above scope of recognition, and they are accepted. Since each remaining claims are without merit, they are dismissed. It is so decided as per Disposition.

Judges Hong-chan

Judges Hong-gion

Judges Maximum-Bedle