[1] Details of the doctor's duty to explain medical treatment at the stage of clinical trial

[2] In a case where not only consolation money but also compensation for property damage is sought in violation of a doctor's duty to explain, the degree of violation of the duty to explain required and whether there is causation between the violation and the result of the duty to explain (affirmative)

[1] Articles 2 and 750 of the Civil Act / [2] Articles 393, 750, and 763 of the Civil Act

[1] Supreme Court Decision 2007Da3162 Decided October 14, 2010 (Gong2010Ha, 2055) / [2] Supreme Court Decision 95Da56095 Decided April 12, 1996 (Gong196Sang, 1526)

Plaintiff (Law Firm Jin, Attorneys Oi-ju et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Sharing, Attorneys Lee principal-hoon et al., Counsel for the defendant-appellant)

Busan District Court Decision 2013Na5654 Decided October 23, 2013

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 1 and 2

Before performing medical practice, a doctor is obligated to explain to a patient matters deemed reasonable in light of the current medical level, such as symptoms of a disease, details and necessity of treatment methods, anticipated risks, etc., to allow the patient to choose whether to receive such medical practice by sufficiently comparing the necessity or risks thereof. In particular, if such medical practice is performed at the clinical stage, the patient is obligated to explain the safety and effectiveness (treatment effect) of the relevant medical practice in comparison with general and standard medical practice performed at the time of the enforcement (see Supreme Court Decision 2007Da3162, Oct. 14, 2010, etc.).

The court below held that the defendant did not fulfill his duty of explanation required in the procedure of this case, on the ground that the procedure of this case was conducted at the stage of the clinical trial at the time of its implementation, even though the defendant had a duty to explain not only the general explanation of the level required for the procedure of this case, but also that the procedure of this case is a medical act whose safety and effectiveness (treatment effect) has not yet been established by clinical data, the court below determined that the plaintiff did not fulfill his duty of explanation required in the procedure of this case, on the ground that there was no evidence to find that the safety and effectiveness (treatment effect) of the procedure of this case was not yet proved, and that the safety and effectiveness (treatment effect) of the procedure of this case was not yet established, and that there was no evidence to find that there was no agreement based on clinical experience in dental medicine.

The above determination by the court below is in accordance with the legal principles as seen earlier. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the duty to explain, or by misapprehending

2. As to the third ground for appeal

A. The court below rejected the defendant's assertion that the symptoms alleged by the plaintiff were newly realized due to the negligence in management of return or the poor working environment of the plaintiff, and that there was no causation between the procedure of this case and the procedure of this case. The court below determined that the causation could be sufficiently recognized between the symptoms of infection, routine, routine, and stimulation and stimulation caused by the plaintiff's violation of the defendant's duty to explain.

In light of the record, the lower court did not err by misapprehending the legal doctrine regarding causation or by misapprehending the law of logic and experience, contrary to what is alleged in the grounds of appeal.

B. In a case where a doctor violates the duty to explain and performs surgery, but a patient was unable to lose the opportunity to choose and exercise the right to self-determination when the result was caused, and not only consolation money but also compensation for property damage as a result, the violation of the duty to explain must be the same as that of a doctor's breach of the duty to explain required in a specific treatment process, and it must be proved that there was causation between such violation and the bad result (see Supreme Court Decision 95Da56095, Apr. 12, 1996, etc.).

In light of the fact that the instant procedure was conducted by the Defendant with the belief that the Plaintiff had the effect of the instant procedure for the purpose of reducing inconvenience of life caused by chronic safe diseases rather than for the purpose of treating it in a state of serious health impairment, and that the instant procedure was conducted by the Defendant for the purpose of improving the cosmetic effect, the lower court deemed that the Plaintiff could not have received the instant procedure if the Plaintiff had properly explained about the exact circumstances during which the instant procedure was assessed in clinical medicine, and thus, accepted not only the Plaintiff’s claim for consolation money but also the medical expenses.

The above determination by the court below is in accordance with the legal principles as seen earlier. In so doing, it did not err by misapprehending the legal principles on the scope of damages.

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 Yong-deok (Presiding Justice)