In a case where Party A received medical treatment from Party C, the director of C's cancer center operated by C's medical corporation, and Party C diagnosed Party C's lung cancer with acute infection, the case holding that Party B, the employer, was jointly and severally liable for damages suffered by Party A due to the medical negligence and violation of the duty to explain.

In a case where Gap received medical treatment from the head of Byung Hospital Cancer Center, which was operated by Eul medical corporation, and the regular diagnosis of pulmonary cancer was mistakenly conducted, the case held that Eul corporation is jointly and severally liable for damages suffered by Gap, on the grounds that Byung violated its duty to clearly explain the limitation of the method of examination and its possibility of pulmonary cancer, and violated Gap's right to self-determination as to the method of diagnosis and power generation by failing to conduct other tests, such as organizational examination to re-exploitate pulmonary cancer, in light of the following: (a) the first diagnosis of Byung was suspected of pulmonary cancer; (b) the medical treatment process and the medical limitation of the method of pulmonary infection examination conducted by Byung; and (c) the medical treatment process and its result; and (d) the medical treatment process and the medical limitation of the method of pulmonary pulmonary infection examination conducted by Jung; and (b) the court below and Eul corporation, the employer, together with the employer, was fully and severally liable for damages suffered by Gap.

Article 750 of the Civil Act

Plaintiff (Law Firm Sejong, Attorneys Park Jin-jin et al., Counsel for the plaintiff-appellant)

Defendant 1 Medical Corporation and one other (Attorney Park Jong-hoon et al., Counsel for the defendant-appellant)

December 15, 2011

1. The Defendants jointly and severally pay to the Plaintiff 20,000,000 won with 5% interest per annum from October 22, 2010 to January 19, 2012, and 20% interest per annum from the next day to the day of full payment.

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

3. Of the litigation costs, 50% is borne by the Plaintiff, and the remainder 50% is borne by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

The defendants jointly and severally pay to the plaintiff 150,000,000 won with 25% interest per annum from the day following the delivery of a copy of the civil conciliation application of this case to the day of complete payment.

1. Basic facts

A. Relationship between the Parties

(1) On November 2009, the Plaintiff was under the ○○○ Hospital (hereinafter “Defendant hospital”) located in Changwon-si (hereinafter “Defendant 1’s medical corporation”), which was operated by Defendant 1 medical corporation, and was subject to wingout operation and pulmonary tissue inspection, and thereafter, was determined at the Busan 0 Hospital on February 25, 2010, and is currently under navigational cancer treatment at the sponse Hospital in the 3rd generation school.

(2) Defendant 2 is a medical specialist who inspected the Plaintiff’s waste tissue at the time of November 2009 while working as the head of the cancer center of the Defendant Hospital. As a result of the organizational examination, Defendant 2 diagnosed the Plaintiff’s disease as a acute salt rather than waste cancer.

B. The plaintiff's treatment process

(1) On October 26, 2009, the Plaintiff complained of the right side of the Plaintiff, and received the first medical treatment at the Defendant Hospital.

(2) On October 28, 2009, the Plaintiff, upon receiving an early high-frequency test at the Defendant Hospital, was found to have a large number of absences in the gate and received an examination of gate infection, was hospitalized at the Defendant Hospital on the same day, and received a chest ray removal operation on the same day. On the same day, the Plaintiff was also given a chest ray removal operation on the same day. On the other hand, as a result of the shooting, the Plaintiff was recommended by Defendant 2, a doctor outside the Defendant Hospital, to take a chest EC (E Commission’s joint hard-type radio-type photographing surgery, and a photo taken after administration of the cromoosrathy type radio-type computer shotgraphing surgery).

(3) On November 2, 2009, when the Plaintiff was hospitalized in a hospital after the removal of gate rocks, the Plaintiff underwent a chest ECT inspection at the request of Defendant 2, a doctor in charge of internal medical treatment. As a result, Nonparty 1, a doctor in the Defendant hospital, who conducted a chest EC photographing against the Plaintiff, discovered a 2.5 cm degree at the middle of the Plaintiff’s right-hand side, and recommended the Plaintiff to undergo a close inspection by moving the gate to a higher hospital (at that time, Nonparty 2, an inspector, who was suspected of being suspected of 1bN00).

(4) However, unlike the above internal doctor Nonparty 1, Defendant 2, the director of the Defendant Hospital Cancer Center, recommended the Plaintiff to undergo an pulmonary cancer examination at the Defendant Hospital during the period of hospitalization, and accordingly, the Plaintiff was subject to the Non-Party 1’s Non-Party 1, and accordingly, the Plaintiff was subject to the Non-Party 2’s Non-Party 3’s Non-Party 2 at the Defendant Hospital’s hospital.

(5) On November 4, 2009, Defendant 2: (a) diagnosed the name of the Plaintiff’s disease with an acute infection rather than an lung cancer; (b) notified the Plaintiff of the result; (c) to observe the progress while treating antibiotics in the future; and (d) to discharge the Plaintiff on November 5, 2009.

(6) On November 19, 2009, the Plaintiff received chest-ray photographs from the Defendant Hospital to observe the progress of the pulmonary treatment and the removal of wings. As a result, it was confirmed that there was no change in the size of the pulmonary treatment compared to the radiation photographs conducted on November 4, 2009, notwithstanding the pulmonary treatment, and Defendant 2, a medical doctor at the time, directed the Plaintiff to follow-up management again after one month (on the contrary, Nonparty 1, a medical doctor at the time, issued a written request for medical treatment to the Plaintiff).

(7) On December 12, 2009, the Plaintiff was taken a chest ray photograph by the Defendant hospital on the ground that the Plaintiff was found to have a chest ray, and as a result, there was no change in the pulmonary ray, and on January 12, 2009, the Plaintiff was still taken a chest ray photograph with the Defendant hospital on January 12, 2009, and it was confirmed that there was no change in the Plaintiff’s pulmonary ray, Nonparty 1 recommended the Plaintiff to undergo a close inspection and surgery with the higher hospital.

(8) On February 3, 2010, the Plaintiff: (a) was exposed to frequent symptoms; (b) was taken a CT photograph at the Busan White Hospital affiliated with the Indones University on February 3, 2010; and (c) was diagnosed as pulmonary cancer on February 19, 2010 by the relevant hospital on the 25th day of the same month.

(9) On February 26, 2010, the Plaintiff was diagnosed as 4 pulmonary cancer (on the part of a non-pactary cell cancer and bones) as a result of a close inspection conducted by transferring the Plaintiff to a hybrid hospital at the National University of Generation on February 26, 2010. The Plaintiff is currently under aviation cancer treatment at the relevant hospital.

(c) Relevant medical knowledge;

(1) The meaning of the waste cancer;

The term "waste cancer" refers to a malicious form caused by the lung, and it is difficult to find early detection due to lack of initial symptoms.

(2) Types of waste cancer;

The pulmonary cancer is classified into non-cell pulmonary cancer and sub-cell pulmonary cancer according to the size and form of cancer cells on the present and present condition, and such classification is different from clinical progress. Non-cell pulmonary cancer can be expected to be completely cured by performing an surgery after early diagnosis, but most of the sub-cell pulmonary cancer is still in progress to the extent that it is difficult at the time of diagnosis. Non-cell pulmonary cancer occurs at approximately 80% to 85% of pulmonary cancer patients.

(3) The death rate of waste cancer;

In Korea, the occurrence rate of lung cancer is not first part of cancer, but it is the highest number of patients who died from lung cancer as treatment is well known compared to other cancer.

(4) A general symptoms of non-cellary cancer;

There are parassis, a mixture of skins, guest transfusions, respiratory difficulties, chest pains, etc.

(5) Method of diagnosis of non-cellary cancer;

The pulmonary cancer confirms symptoms and signs of a patient, and conducts an early diagnosis through a chest X-ray examination, a cT examination, a guest cell diagnosis, etc., and it is difficult to conduct accurate diagnosis even with the chest CT examination (at least 25% of opinion by the chest CT examination, there is a result of research that only 10% of opinion was discarded cancer). On the other hand, after the symptoms and signs of the patient or the aforementioned selective examination, organized diagnosis must be conducted. The climatic tissues need to be conducted with the climatic examination through the climatic diameter, the climatic climatic climatic climatic cliff, the climatic stypymosis or annual system climatic styphymosis, the marosis, the plemothal leuk, and the chromosome cmosome, the chromosome, the external organ cmosome, the external plemopy, the chmosome, etc.

The chest X-ray test is a basic test, which is not easy to distinguish from other lungs, such as lung cancer, it is not easy to distinguish from other lungs. The chest CT test is essential for the judgment on the patient's weapons by evaluating the size, location, relationship with the surrounding organs, etc., and it is not high accuracy to determine whether or not a flap is committed by the size of the flap, and it is most easy and repeated to determine whether or not a flap is committed by the size of the flap. However, in central lung cancer, the diagnosis rate in the flap cancer is high, but the diagnosis rate in the central lung cancer is high, but there is a possibility that the flap cancer is low, and it is essential for the diagnosis rate in the organized diagnosis and the judgment of the central lung cancer, and the light flaposis is suitable for the flap disease diagnosis of the flap., but it is low the diagnosis rate.

(6) the weapons and treatment of non-cellary cancer;

The weapons of the non-pactary cancer exist only in the pulmonary area, and the forest is cut off with only one string (one string in the city, one 1B), two strings in the state where cancer is transferred due to the pulmonary flag, waste fladial fladation or chest walls, or a strings (the 2A and two strings are divided into three strings), where cancer is limited to the pulmonary strings, and the strings are spread up to the string strings, or the strings, flad with bad scare, large blood, engine, food, etc. (three strings, three strings), and in principle, four strings in the state where it is transferred to another long-term, such as brain, bones, bones, etc., and in principle, it is possible to provide the treatment, but it is not possible to provide the fundamental treatment for the treatment of 1, 2, and 3A.

(7) The central existence period of non-pactary cell cancer patients (the period during which the patient remains 50%) is about six months.

[Reasons for Recognition] The facts without dispute, Eul evidence 1-1-13, the result of the entrustment of the examination of medical records to the head of an ordinary university hospital, the fact inquiry result, the result of the entrustment of the examination of CT film appraisal to the head of Seoul National University Hospital, the purport of the entire

2. Occurrence of liability for damages;

A. The plaintiff's assertion

Since Defendant 2, who is a doctor in charge of Defendant 2’s medical care, lost the opportunity to receive medical care at an appropriate time due to the Plaintiff’s negligence and duty to explain as follows, Defendant 2 and Defendant 1 medical corporation, who is the principal doctor, are jointly and severally liable to compensate the Plaintiff for damages incurred therefrom.

(1) Negligence in treatment

In the process of the Defendant hospital’s operation, there was a view that the Plaintiff was suspected of being the pulmonary cancer due to the discovery of the pulmonary cancer in the process of the operation. Moreover, even though Nonparty 1, a doctor within the Defendant hospital, recommended the Plaintiff to undergo a close inspection, Defendant 2, the president of the Defendant hospital, who was not capable of treating the pulmonary cancer, recommended the Plaintiff to undergo an inspection at the Defendant hospital. As a result, Defendant 2 diagnosed the symptoms of the Plaintiff suffering from the pulmonary cancer as an acute infection only once, and even if there was no change in the pulmonary cancer as a result of continuous radioactive photographing, the Plaintiff lost the opportunity to receive the pulmonary cancer at an appropriate time due to the medical negligence by the medical staff of the Defendant hospital, such as failing to conduct another active inspection to diagnose the pulmonary cancer even if there was no change in the pulmonary cancer.

(2) Breach of duty to explain

Although Defendant 2, the president of the Cancer Center of the Defendant Hospital, failed to inform the Plaintiff of such fact, Defendant 2, without notifying the Plaintiff of such fact, recommended the Defendant hospital to undergo an inspection, and did not explain all the possibility of the mispersive inspection and its side effects.

B. Determination

(1) Whether there was negligence in treatment

When a doctor performs medical acts such as diagnosis and treatment, he/she has the duty of care to take the best measures required to prevent risks depending on the patient's specific symptoms or circumstances, given the nature of the duties of managing the patient's life, body, and health, and such duty of care shall be based on the level of medical acts performed in the clinical medical field, such as medical institutions, at the time of performing the medical act. The level of medical care refers to the so-called medical awareness generally accepted at the time of the medical act by an ordinary doctor, and thus, it should be identified at a normative level in light of the environment and conditions of medical treatment, the peculiarity of the medical act, etc. (see Supreme Court Decision 2004Da13045

In light of the above legal principles, the Plaintiff’s negligence on the part of the Defendant 2, i.e., the following circumstances acknowledged by comprehensively taking account of the overall purport of the evidence revealed earlier, namely, (i) the Plaintiff’s first time of treatment at the Defendant hospital; and (ii) the Nonparty 1, a physician within the time, recommended the Plaintiff to undergo a close inspection; (iii) Defendant 2, the head of the Defendant Cancer Center, rather than the above internal doctor’s opinion, recommended the Plaintiff to undergo a close inspection; (iv) the Plaintiff to undergo an examination at the Defendant Hospital, which was no longer likely to undergo a close examination at the time of the first time of treatment; and (v) the Plaintiff was no longer able to undergo a close examination at the time of the first time after the first time of treatment; (v) the Plaintiff was no longer able to undergo a close examination at the time of the first time of the treatment; and (v) the Plaintiff was no longer able to undergo a close examination at the time of the first time of the treatment of the Plaintiff’s infection.

(2) Whether the disclosure duty has been breached

In general, a doctor has a duty to explain the symptoms of a disease, treatment method and necessity, potential risks of a disease, etc. to the patient or his/her legal representative, and to allow the patient to choose whether to receive such medical treatment by sufficiently comparing the necessity or risk of the patient (see Supreme Court Decision 2002Da48443, Oct. 25, 2002). In light of the above, it is reasonable to view that a doctor's duty to explain to a doctor as above is to guarantee the patient's right to self-determination or the opportunity to choose choice for choice for the patient's treatment act, as well as to explain the symptoms, treatment method and necessity, and all stages of medical treatment, such as examination, diagnosis, treatment, etc., under the premise that the patient or his/her legal representative is required to obtain consent of the patient, unless there is an emergency patient or any other special circumstance.

In light of the above legal principles, (1) on December 18, 2009, at the first Defendant hospital, there was a view that the Plaintiff might have been suspected of pulmonary cancer due to the detection of pulmonary ray, and accordingly, there was an opinion that the Plaintiff should undergo a close inspection. (2) Defendant 2, the president of the Defendant hospital, recommended the Plaintiff to undergo an inspection by the Defendant hospital. As seen above, the likelihood that the Plaintiff could not be explained about 80% and 90% of the likelihood of the Plaintiff’s pulmonary mal salphical malical malphical malphical malphical malphical malphical malphical malphical malphical malphical malphical malphical malphical malphical malphical malphical malphical malphical mal malphical malphical mal mal.

C. Sub-committee

Therefore, Defendant 2 and his employer are jointly and severally liable for damages sustained by the Plaintiff due to the tort committed by Defendant 2’s above negligence.

3. Scope of damages.

(a) Property damage;

Inasmuch as statistically closed cancer 4 is considerably short of the possibility of survival, if property damage is calculated by assuming the case of death after treatment for one year based on June 2010, the damage equivalent to the lost income is equivalent to KRW 240,613,466, funeral expenses, and funeral expenses, and the Defendants are liable to compensate the Plaintiff for such property damage. However, there is no evidence to calculate the Plaintiff’s property damage, and it cannot be deemed that the damage was incurred as alleged by the Plaintiff. Thus, the Plaintiff’s above assertion is without merit without further review.

(b) consolation money;

(i)The reasons for consideration;

When Defendant 2 did not intend to follow only the result of the first anti-scopic test in the process of diagnosing whether or not the Plaintiff’s pulmonary cancer, and provided the Plaintiff with an opportunity to choose to undergo a close examination at another superior hospital by providing the Plaintiff with proper explanation on the limitation of the method of the above examination, Defendant 2 may obtain an opportunity to undergo an appropriate anti-scopic surgery, including the surgery immediately after early detection of the pulmonary cancer. It can be sufficiently confirmed that the Plaintiff lost the opportunity to undergo an early treatment due to the above negligence of the medical personnel of the Defendant hospital, thereby receiving physical and mental pain. Since the progress or speed of the pulmonary cancer is not specified based on various factors such as age, gender, physical constitution, etc., the diagnosis and treatment of the pulmonary cancer of the Plaintiff at the Defendant hospital’s aforementioned negligence is not easy to identify the Plaintiff’s age at a certain time due to the occurrence of the pulmonary cancer or the limitation of the pulmonary surgery, the Plaintiff’s family relationship at the time of the 10% diagnosis and treatment.

(2) Amount recognized: 20,000,000 won;

C. Sub-committee

Therefore, the Defendants are jointly and severally obligated to jointly and severally pay to the Plaintiff the solatium 20,000,000 and the damages for delay calculated at the rate of 5% per annum under the Civil Act from October 22, 2010 following the delivery of a copy of the application for civil conciliation of this case sought by the Plaintiff after the date of tort until January 19, 2012, which is the date of the adjudication of this case, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment (the Plaintiff claimed damages for delay calculated at the rate of 25% per annum, but there is no evidence to acknowledge this).

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and it is so decided as per Disposition by the assent of all participating Justices.

Judges Noh Sung-sik (Presiding Justice)

Note 1) In general, TNM disease vehicles generally describe the condition of the fat, and TNM disease vehicles, T1 means that: (a) the maximum diameter of the fat is less than 3cc and is surrounded by waste or inside the inner ples; (b) N (forest, Lymph no) describe the fating of the fat; (c) N0 is a case where there is no fating of the fat; (d) M (L) describe the fat; and (e) M is a case where there is a remote transmission; and (e) M1 means that there is a remote transmission.

2) In the case of lung cancer, the general light scopic microscopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic s