[1] The doctor's duty of explanation and the patient's right of choice

[2] The case holding that even though a physician has to give sufficient time to the patient sufficient time to determine whether to perform the surgery, the physician's specific explanation of the contents and risks of the surgery should be given at 21:00 on the day immediately before the surgery, which is after the completion of all preparations for the surgery, constitutes a violation of the doctor's duty of explanation

[1] In general, a doctor is obligated to explain to a patient or his/her guardian the symptoms of a disease, the method and necessity of treatment, the potential risks of occurrence, etc. in light of the current medical level, and to make the patient choose whether to receive medical treatment after sufficiently comparing the necessity or risks of the disease, and to provide detailed explanation of the method of medical treatment and other matters necessary for the health care in order to achieve the purpose of the medical treatment. To substantially guarantee the patient's choice, it is sufficient time to prepare for adverse results, such as post-treatment by comparing the necessity or risks of the operation with the patient and considering the need of the operation and the risk of the operation, that is, time should be sufficiently discussed and decided after sufficient deliberation with the person trusted, and that time should be shorter than time when the patient's emergency or time should be determined after sufficient consideration.

[2] The case holding that even though the possibility of death is relatively large, it is necessary to give sufficient time to the patient to determine whether to perform the surgery, the medical doctor provided specific explanations about the contents and risks of the surgery only when he or she was within 21:00 days before the date of the surgery, which is after all the preparation for the surgery was completed, it constitutes an infringement of the patient's right of self-determination or right of choice on the ground that the necessity and risk of the surgery are compared to the necessity of the surgery and the risk of the surgery, and it does not have sufficient time to determine whether to choose the surgery and to prepare for bad results.

[1] Articles 390, 750, and 751(1) of the Civil Act / [2] Articles 390, 750, and 751(1) of the Civil Act

[1] Supreme Court Decision 95Da49608 delivered on July 22, 1997 (Gong1997Ha, 2608)

Plaintiff 1 and two others (Law Firm Aju, Attorneys Lee Woo-woo, Counsel for the plaintiff-appellant)

Defendant 1 School Foundation and one other (Attorney Cho Jong-tae, Counsel for the defendant-appellant)

September 4, 2008

1. The Defendants shall pay 18,00,000 won to each of the Plaintiffs 1, and 12,00,000 won to Plaintiff 2, and 5% per annum from August 5, 2006 to September 25, 2008, and 20% per annum from the next day to the day of full payment.

2. Plaintiff 1 and 2’s remaining claims against the Defendants and Plaintiff 3’s claims against the Defendants are dismissed, respectively.

3. Of the costs of lawsuit, 4/5 are assessed against the Plaintiffs, and the remainder is assessed against the Defendants.

4. Paragraph 1 can be provisionally executed.

The Defendants pay to each of the Plaintiffs 1 126,618,168 won, 63,309,084 won to Plaintiff 2, and 10,000,000 won to Plaintiff 3 as well as 5% per annum from August 5, 2006 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. Status of the parties

The plaintiff 1 is the husband of the deceased non-party 1, and the plaintiff 2 is the father of the deceased, and the plaintiff 3 is the mother of the deceased. Meanwhile, the defendant 2 is the husband of the brain sewage terminal operation for the deceased, and the defendant 1 school juristic person is the employer of the defendant 2.

(b) Progress of an operation;

(1) Although the Deceased had a normal high blood pressure and urology, he was engaged in the milk delivery sales business without any particular trouble in daily life. From January 2006, the Deceased visited ○ University Hospital affiliated with Defendant 1 School Foundation (hereinafter “Defendant Hospital”) and hospitalized around July 5, 2006 due to the symptoms of sheshesheshel and shelshels.

(2) Although the Deceased was examined in the extension, heart, and internal and internal surgery of the Defendant Hospital, he did not find any accurate cause for the symptoms. However, he was convicted of abnormal brain sewage, and was diagnosed on July 7, 2006 by Defendant 2, a medical specialist of the Defendant Hospital, and was diagnosed as Chishing in the form of brain liver.

(3) On July 8, 2006, Defendant 2 received a diagnosis from the heart of the Defendant Hospital that the Deceased is able to undergo an operation, and on the 11th day of the same month after the third day, Defendant 2 decided to conduct an operation to remove the cerebral sewage from the deceased.

(4) At around 20:00 on July 10, 2006, the Deceased issued a search for surgery on the following day, and provided an explanation on the method of preventing repulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary tion from the nurse in charge.

(5) On July 10, 2006, the Deceased and Plaintiff 1 explained the necessity, contents, anticipated mergers, post-explosion (cerebral macy, death possibility, possibility of re-operation, disorder of vision and vision, and treatment of the patient room) etc. from Nonparty 2 of the franchisian in receipt of Defendant 2’s instructions.

(6) On July 11, 2006, from around 08:00 to 15:00, the Deceased was performed from the medical personnel of Defendant 2 and Defendant Hospital for the removal of the brain sewage terminal (hereinafter “the first operation”).

(7) On July 11, 2006, the Deceased moved to the recovery room of the Defendant Hospital at around 15:00, and at the time, the consciousness of the Deceased was not broken and the respiratory was a rule.

(8) 피고 병원의 회복실 담당간호사는 2006. 7. 11. 17:00경 망인이 20㏄ 가량의 음식물을 토하고, 심박수가 120회로 상승하자, 담당의사에게 그 사실을 통지하고, 망인에게 심호흡을 독려하며 산소를 공급하였다.

(9) On July 11, 2006, at around 17:14, the medical personnel at the Defendant Hospital discovered that there was brain cerebral species by taking two alley CT photographs against the Deceased.

(10) Around 17:30 on July 11, 2006, Defendant 2 and Defendant Hospital medical professionals performed an emergency surgery on the deceased (hereinafter “second surgery”) with the consent of Plaintiff 1 from 17:50 to 20:25.

(c) Progress after surgery;

On July 26, 2006, the deceased died of cerebral cerebralopty, brain sewage body Montreal and bale imbalances after surgery, and acute cardiopulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 4, 6 (including numbers, if any), Eul evidence Nos. 1 and 2 (including each number), the duty records of the President of the Korean Association of Doctors of this Court, the results of the commission of appraisal of the duty records and the results of inquiry, the purport of the whole pleadings

2. Medical knowledge; and

(a) Species of brain sewage;

The brain sewage type is the species of training or bad faith generated from the scarcitys or the scarcitys of the brain sewage, and, in the event that prompt treatment is not conducted even though the impact on the human body is different depending on the nature, it causes a merged disease due to the overproduction, low production, pressure from neighboring organizations, etc. of Zmons. If the scarmons are generated from a cell where the scarmons in which the scarmons are produced, which stimulates the scarcitys to generate an excessive production of the scarcitys, thereby inducing the salves scarcitys of the salves, and the salves of the salves or the salves of the salves in which the salves are applied, the salves of the salves or the salves of the salves of the salves are applied.

(b) Cubing;

Chish scish scish scish scish scish scish scish scish scish scish scishing symptoms consisting of symptoms, such as a central scish scishing, high blood pressure, ciphers, telegraphic scish scishing, scish scishing, and scish scish scishing, among others, several causes of Ccish scish scishing may arise.

[Reasons for Recognition] Gap evidence Nos. 6, Eul evidence Nos. 4 and 5, and the result of the court's entrustment to the President of the Korean Medical Association

3. Determination

A. Determination on the Defendants’ negligence as alleged by the Plaintiffs

(1) Failure to take a measure of dystrophy in the first operation;

(가) 원고들은, 피고 2 및 피고 병원 의료진이 1차 수술시 뇌견인이나 기타 수술과정에서 뇌동맥 등의 혈관을 손상시켜 발생한 출혈에 대하여 지혈조치를 제대로 하지 않은 과실이 있었고 그로 인해 2차 수술시 망인에게 1,600㏄의 혈액을 대량으로 수혈하게 된 것이라고 주장한다.

(나) 이에 부합하는 듯한 갑 제6호증의 기재는 믿기 어렵고, 1차 수술 후 실시한 CT 촬영 결과 망인의 뇌실 내에 혈종이 발견된 사실, 피고 병원 의료진은 위 혈종 제거를 위해 2차 수술을 한 사실은 앞서 본 바와 같으며, 을 제1호증의 32의 기재 및 변론 전체의 취지에 의하면, 피고 병원 의료진이 2차 수술시 망인에게 1,600㏄의 혈액을 수혈한 사실은 인정되나, 을 제1, 2호증(각 가지번호 포함)의 각 기재, 이 법원의 대한의사협회장에 대한 의무기록감정촉탁결과 및 사실조회결과, 변론 전체의 취지에 의하면, 망인의 뇌실 내의 뇌하수체 선종의 크기는 전후 32㎜, 좌우 22㎜, 상하 45㎜인 사실, 피고 병원 의료진은 두 개의 견인기를 사용하여 망인의 경뇌조를 열어 뇌척수액을 제거하면서 안장 위로 침윤(supraseller extension)된 대부분의 종양을 제거한 사실, 피고 병원 의료진은 써지셀, 젤폼과 양극 응고기를 사용하여 망인의 수술부위에 대한 지혈 조치를 하고, 활동성 출혈점이 없음을 확인한 후 경막, 두개골, 두피를 봉합한 사실, 망인이 회복실로 옮겨진 후 2시간 동안 망인의 호흡이나 활력지수에는 별다른 이상이 없었던 사실을 인정할 수 있는바, 위 인정 사실에 망인의 뇌하수체 종양은 10㎜ 미만인 미세선종에 비하여 매우 큰 거대선종인 점, 종양 제거를 위한 수술에는 출혈이 불가피하게 수반되는 점, 망인에게 1,600㏄의 혈액을 수혈하였다고 하여 망인의 뇌 내에서 그에 상당하는 대량 출혈이 있었다고 보기 어려운 점, 피고 병원 의료진이 회복실에서 망인의 이상증상을 발견하고 즉시 CT 촬영을 통해 원인을 파악하고 응급으로 2차 수술을 한 점 등을 보태어 보면 앞에서 인정한 사실만으로 피고 병원 의료진이 1차 수술에서 망인에 대한 지혈조치를 제대로 하지 아니한 과실이 있다고 인정하기에 부족하고 달리 이를 인정할 만한 증거가 없으므로, 이러한 피고 병원 의료진의 치료행위는 현재의 임상의학 수준에 비추어 어떠한 과실이 있다고 보기 어려워 원고들의 이 부분 주장은 이유 없다.

(2) Violation of duty of explanation

(A) Defendant 2: (a) provided more serious explanation to the patient or his family members on the risk of the instant surgery, in particular, the possibility of death by the side effect after the surgery, and notified the patient or his/her family members of the surviving life period when he/she did not perform the surgery, so that the patient or his/her family members can be able to be able to consider whether he/she would undergo the surgery or live in the remaining life after abandoning the surgery; (b) without taking such measures, Defendant 2 provided only the deceased and his/her disease to the deceased on July 11, 2006 that he/she would undergo the surgery; and (c) provided detailed explanation on the content of the surgery and its side effect, and failed to perform the duty to explain properly.

(B) In general, in a case where a doctor performs a surgery for a patient or his/her guardian and performs a medical act that is likely to cause adverse results thereafter, barring any other special circumstance, he/she is obligated to explain to the patient or his/her legal representative the symptoms of a disease, treatment method and necessity of treatment, anticipated risks of occurrence, etc. in light of the current medical level, as a premise to obtain consent from the patient or his/her guardian, and to make the patient choose whether to receive the medical act after sufficiently comparing the patient's necessity or risks. In addition, in order to achieve the purpose of the medical treatment, he/she has a duty to explain in detail the method of medical treatment and other matters necessary for the health management of the patient or his/her guardian to prepare for a post-treatment, etc. (see Supreme Court Decision 95Da49608, Jul. 22, 1997, etc.). In order to ensure such patient's right of choice, in principle, the patient's need for surgery or comparative report to the patient, and the patient's considerable time is sufficient to prepare for any adverse results such.

(C) On July 21, 2006, Defendant 2 gave an explanation to the deceased and the Plaintiff 1 through Nonparty 2, the main values of the deceased on July 21, 200 and around 00, as seen earlier, on the following circumstances acknowledged by the underlying facts and the overall purport of Plaintiff 1’s newspaper and pleading, namely, (i) the thalore type of brain death was very rare and rare diseases of 32mm, 22mm above, and 45mm above; (ii) the deceased was hospitalized at the Defendant Hospital on July 5, 2006 without any difficulty in communicating or acting until the time of the first operation; and (iii) the deceased’s instruction and explanation on all the risks of the operation were given to the deceased on July 28, 2006.

B. Scope of liability for damages

(1) Determination of damages against the deceased

In cases where a physician violates the duty of explanation and requests for all damages to a patient as a result of a serious result of death, etc., a proximate causal relationship exists between the serious result and the doctor’s fault in the process of acquiring the patient’s right of self-determination or the opportunity for choice for treatment. At that time, the doctor’s breach of the duty of explanation must be the same degree as that of the doctor’s breach of the duty of explanation required in the specific treatment process for the patient’s life and body (see Supreme Court Decision 2005Da5867, May 31, 2007, etc.). In addition, it is difficult to deem that there exists a causal relationship between the Defendant 2’s breach of the duty of explanation and the deceased’s death, and the violation does not appear to be the same as that of the doctor’s breach of the duty of explanation required in the specific treatment process for the patient’s life and body. Accordingly, the Defendants are not liable for all damages to the deceased

However, the Defendants, as seen above, caused mental pain by infringing on the deceased’s right to self-determination or right to select as above. Therefore, in consideration of various circumstances shown in the arguments in the instant case, such as health team, the deceased’s age, occupation, and the course and result of the instant medical treatment, it is reasonable to determine 30,000 won for the deceased as consolation money. The deceased’s consolation money was inherited respectively to the Plaintiff 1, the spouse of the deceased, according to his legal share of inheritance (30,000 x 3/5 x 3/5), 12,000,000 (30,000,000 x 2/5) for the Plaintiff 2, who is his child, according to his legal share of inheritance.

(2) Determination of consolation money for the plaintiffs

The Defendants’ violation of the duty to explain does not include cases where they are liable for all damages caused by bad faith, as it is identical to the medical personnel’s duty of care required in the course of specific treatment of the patient’s life and body. As seen earlier, as long as the violation of the patient’s right to self-determination, there is no ground to recognize the claim of consolation money against the Plaintiffs, not the parties to the medical contract

C. Sub-committee

Therefore, the defendants are obligated to pay to each plaintiff 1 1 12,00,000 won, 12,000,000 won to the plaintiff 2 as well as damages for delay calculated at each rate of 5% per annum under the Civil Act from August 5, 2006, which is the date of this decision, until September 25, 2008, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which is the date of this decision, for each of the above illegal acts.

4. Conclusion

Therefore, the plaintiff 1 and 2's claims against the defendants are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. The plaintiff 3's claims against the defendants are dismissed as they are without merit. It is so decided as per Disposition.

Judges Lee Jin-hee (Presiding Judge)