[1] Whether the doctor should explain to the patient the risk of the relevant drug even at the stage where the specific spreading of the danger was revealed only when it was revealed that there was a danger of the drug, and whether the same applies to the case where a herb doctor administers herb drugs (affirmative)

[2] In a case where the risk of oriental medicine is likely to occur through the interaction between oriental medicine and oriental medicine, whether an act of an oriental medical doctor explaining the risk of oriental medicine that may arise from the interaction between oriental medicine and oriental medicine to a patient constitutes medical practice other than those licensed to an oriental medical doctor (negative), and whether an oriental medical doctor shall explain the aforementioned risk to a patient before administering the oriental medicine (affirmative)

[1] Before administering a drug in urgent or other special circumstances, a doctor should have an opportunity for the patient to voluntarily decide whether to respond to the medication by explaining important matters for the patient’s decision-making, such as symptoms of disease, treatment method, content and necessity of treatment, anticipated risks to life and body, side effects, etc. However, if the significant result of the patient’s occurrence is not caused by medication, or is not related to the patient’s decision-making, a violation of the duty to explain is not an issue. In general, research on the risk of the drug is revealed that the existence of the risk is revealed first, but it is more important matters for the patient’s decision-making, since the existence of the risk is more important matters than the specific advance of the occurrence of the risk of the drug, it is necessary to explain the risk of the drug to the patient, and this also is also the case where an oriental medical doctor administers the drug in question.

[2] Since the Medical Service Act does not have any provision stipulating the contents of a licensed medical practice by a doctor, an oriental medical doctor, etc., the determination of whether a specific act constitutes a medical practice other than a licensed one ought to be made in light of social norms by taking into account the purpose of the Medical Service Act, the details of the relevant medical practice, the specific purpose of the medical practice, and the pattern of the medicine. However, the risk of oriental medicine may arise from the independent action of oriental medicine, but the patient may be caused by the interaction with the pharmacopy, and medical knowledge about the interaction between oriental medicine and oriental medicine and the risks therefrom need to be thoroughly reflected in the study of oriental medicine and oriental medicine, as well as the results of the study are also reflected in the knowledge of oriental medicine and oriental medicine. Considering these circumstances, only one of the doctors or oriental medical doctors exclusively continue to engage in the relevant research or oriental medicine, the risk of oriental medicine cannot be deemed as not only the possibility of arising from the independent action of oriental medicine, but also the risk of arising from the interaction between oriental medicine doctor and oriental medicine doctor with respect to the relevant oriental medicine patient.

[1] Articles 750 and 751 of the Civil Act / [2] Articles 750 and 751 of the Civil Act, Articles 2 and 27(1) of the Medical Service Act

[1] Supreme Court Decision 200Da46511 Decided May 28, 2002 (Gong2002Ha, 1502) / [2] Supreme Court Decision 2009Do6980 Decided May 26, 201 (Gong2011Ha, 1339)

Plaintiff

National Pension Management Corporation

Defendant (Attorney Seo-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na74156 decided September 3, 2009

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the ground of appeal on the risk of inter-damage to the instant herb drugs

The argument that the instant medicine does not pose a risk of liver damage is an error with the selection of evidence or fact-finding, which belongs to the exclusive jurisdiction of the lower court, and thus cannot be deemed a legitimate ground for appeal.

2. As to the ground of appeal on the duty of an oriental medical doctor to explain

A. Before administering a drug, a doctor should have an opportunity for the patient to make a decision on whether to accept the medication by explaining important matters for the patient’s decision-making, such as symptoms of disease, treatment method and necessity, anticipated risks to life and body, side effects, etc., before he/she administered the drug, except in urgent or other special circumstances. However, in cases where the significant result of the patient’s occurrence is not a medication, or where the patient’s decision-making is not related, a violation of the duty to explain is not an issue (see Supreme Court Decision 2000Da46511, May 28, 2002). In general, research on the risk of the drug is revealed prior to the existence of the risk. However, since the existence of the risk of the drug is more important than the specific prior to the occurrence of the risk of the drug, it is necessary to explain the risk of the drug to the patient in question as a doctor at the stage of the specific discovery of the risk. The same holds true even in cases where it is necessary to explain the risk of the drug to the patient in question.

Meanwhile, there is no provision stipulating the contents of a licensed medical practice by a doctor, herb doctor, etc. under the Medical Service Act. Thus, whether a specific act constitutes a medical practice other than a licensed one ought to be determined in light of social norms in light of the purpose of the Medical Service Act, the details of specific medical practice, the purpose of specific medical practice, and attitudes (see, e.g., Supreme Court Decision 2009Do6980, May 26, 2011). However, the risk of oriental medicine may arise from the sole process of oriental medicine, but may arise through the interaction with the drugs for which a patient has recovered, and the medical knowledge about the interaction between oriental medicine and oriental medicine and the risks therefrom need to be thoroughly reflected in the research of oriental medicine and oriental medicine, and the research result thereof also reflects all the knowledge of oriental medicine and oriental medicine, and the research or knowledge related thereto should not exclusively be considered as a risk of harm to human life and hygiene or general health among oriental medicine doctors or oriental medicine doctors prior to the interaction between oriental medicine doctors and oriental medicine doctors. Furthermore, the risk of oriental medicine and oriental medicine cannot be generated from such interaction with the relevant oriental medicine.

B. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court is justifiable to have determined that the Defendant, an oriental medical doctor, did not perform the duty of explanation on the risk of liver damage by prescribing and administering the instant oriental medicine to the Plaintiff. In so doing, the lower court did not err by misapprehending the scope of the duty of explanation of oriental medical doctor and the legal doctrine on the Medical Service Act, contrary

C. Meanwhile, in full view of the following circumstances revealed by the facts acknowledged by the court below, i.e., the fact that the instant herb drug contains material likely to cause liver damage; the time when symptoms occur after the instant herb medication; the Plaintiff does not cause vir or other harm to livers; the Plaintiff did not have any other drugs than medicine; the two drugs already administered for a long time; however, there was no signs of liver damage; and the Plaintiff’s 7 or 8 points (hereinafter “ossibility high possibility”) from the “RUCAM SCORERE”) that are medically useful due to such indirect situation; even if the Plaintiff’s liver damage is highly likely to cause liver damage to the Plaintiff’s peculiar nature, the interaction between the instant herb medication or the instant herb and the instant medicinal medicine may also be presumed to have caused liver damage.

Therefore, the lower court’s judgment that the Plaintiff’s liver damage cannot be deemed to have occurred from the instant herb medication is erroneous. However, as long as the lower court acknowledged consolation money equivalent to the amount determined by the Defendant’s breach of the duty to explain, it cannot be deemed that the above error affected the conclusion of the judgment.

3. Conclusion

Therefore, the appeal is 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 Kim Ji-hyung (Presiding Justice)