2014Da7520 Damages (Definition)

1. A;

Special Representative B

2. C.

3. D;

4. B

5. E.

School Foundation Japan Private Teaching Institutes

Seoul High Court Decision 2012Na66916 Decided December 19, 2013

September 25, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. A physician has the duty of care to take the best measures required to prevent risks depending on the patient’s specific symptoms or circumstances in light of the nature of his/her duties to treat the patient’s life, body, and health. Such duty of care shall be based on the level of medical practice performed in the clinical medicine field, including a medical institution, at the time of performing the medical practice. The level of medical care shall be determined at a normative level in light of the generally known medical environment and conditions at the time of the medical practice, the unique characteristics of the medical practice, etc. (see, e.g., Supreme Court Decision 2010Da25483, Sept. 8, 2011). In addition, in providing medical treatment, a doctor has the reasonable discretion to choose the method of medical treatment determined appropriate according to the patient’s situation, the level of medical care at the time, and the level of his/her own knowledge and experience, and it cannot be said that one of the results of medical treatment was justifiable and any other measure was taken (see, e.g., Supreme Court Decision 2012Da461614).

2. After finding the facts in its holding, the lower court determined that it is reasonable to view that the medical personnel of the Gelim University Gangnam-nam Mental Hospital (hereinafter referred to as the “Defendant Hospital”) operated by the Defendant, through an emergency room on June 25, 2010, stated that the said Plaintiff received surgery on the part of the Plaintiff, and that he/she received surgery on the part of the Plaintiff due to traffic accidents around 1980, and that he/she continued to perform surgery on the part of the Plaintiff at around 1990, and that it would be difficult for the said Plaintiff to take measures for the Plaintiff, such as an engine insertion inserted by the Plaintiff at the time of internal source, even though it continued to increase the amount of oxygen supply due to the Plaintiff’s appeal of respiratory distress, at around 17:00 on June 27, 2010, at around 17:30%, at around 17:40%, it would be difficult for the Plaintiff to have been 17:70% of the above engine inserted inserted by the Defendant Hospital.

3. However, in light of the above legal principles, it is difficult to accept the above judgment of the court below easily.

A. First, we examine whether the medical professionals of the Defendant hospital did not prepare the tubes for inserting the smaller load.

In light of the fact that there is a variety of ages of age and body patients at the time of the insertion of this case, there is no evidence to find out that the tubes for the insertion of this case had not been prepared at the time of the insertion of this case. In light of the records, it is doubtful whether it can be readily concluded that there was no less internal diameter at the time of the insertion of this case, without any evidence. Furthermore, according to the records, it was eight meters after the thickness of the tubes for the insertion of this case used at the time of success in the insertion of this case, and it was a thicker used for adults.

Therefore, the court below should have deliberated more closely on whether the Plaintiff’s hospital’s medical professionals had been at the time of the insertingment of this case, and whether the Plaintiff’s hospital’s medical professionals had been at the hospital ward or middle patient room with a small diameter, and if so, whether the Pib had been used, what is the reason why the Pib had not been used, and whether the possibility of success in the insertion would have been high, and then determined whether the Defendant hospital’s medical professionals had negligence.

B. Next, we examine the determination that the failure to prepare the erotype scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopics is negligent

However, according to the records, if part of the machinery site is obstructed, it can be known that the equipment used for the inspection to clarify the cause thereof, and there is no evidence to find out the treatment environment such as whether the equipment is ordinarily used for inserting in the machinery site in an emergency where the direct supply of oxygen within the machinery site is required, what urgency is used, whether the equipment is installed in any emergency, whether the equipment in the machinery site is installed in a hospital or a middle patient room, and, if not installed, how the equipment in the machinery site is used for inserting in the machinery site.

Therefore, the court below should have deliberated closely on the above medical environment, and should have determined whether the medical personnel of the defendant hospital attempted the insertion of this case without preparing for the maletype maletype scirical landscape claimed by the plaintiffs.

C. Finally, we examine whether the medical personnel of the defendant hospital did not prepare an emergency engine break, and whether it is negligent.

The court below is not clear that the medical personnel of the defendant hospital did not prepare in advance. The court below should have deliberated on the emergency medical personnel of the defendant hospital's hospital's medical personnel such as what the tools and equipment necessary for performing the routing of the engine are stated in an emergency. The court below should have deliberated on the emergency medical personnel's medical personnel's medical personnel's medical personnel's medical personnel's medical personnel's medical personnel's medical personnel's medical personnel's medical personnel's medical services.

D. Nevertheless, the lower court determined that the Defendant Hospital’s medical personnel did not prepare the aforementioned tool or equipment solely on the basis of the reasoning of the judgment without sufficiently examining the various circumstances pointed out above, such as whether or not it was prepared or could be easily prepared at the time of the insertion of this case, such as the tubes for the insertion of a small diameter at the time of the inserting of this case, the cryp type engine diameter, or an emergency engine renovation, etc., and that the Defendant Hospital’s medical personnel did not prepare the above tool or equipment. In so determining, the lower court erred by misapprehending the legal doctrine on the meaning and method of the medical level, which serves as the basis for the duty of care in medical practice, and the criteria for determining medical malpractice, thereby failing to exhaust all necessary deliberations

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Shin Jae-young in charge

Justices Lee Sang-hoon

Justices Cho Jong-hee