[1] In a case where symptoms which caused a serious result to a patient during or after an surgery have occurred, whether the symptoms may be presumed to be based on medical negligence if indirect facts, other than medical negligence, are proven that there are no other causes for the occurrence of symptoms (affirmative) and the limitation thereof

[2] The case holding that the judgment below erred by misapprehending legal principles, in a case where Party A’s hospital operated Party B claimed two snow bombing surgery and injection surgery, and complained of two snow bombing, and received a diagnosis of each bombing and external bombing bombing, it is reasonable to presume that the bombing of each bombing and the bombing of the bombing bombing, etc. caused by damage to each bombing bombing, etc. caused by the surgery while the surgery was performed by Party A

[1] Article 750 of the Civil Act, Articles 202 and 288 of the Civil Procedure Act / [2] Article 750 of the Civil Act, Articles 202 and 288 of the Civil Procedure Act

[1] Supreme Court Decision 2011Da100138 Decided October 11, 2012

Plaintiff (Counterclaim Defendant) (Law Firm Inology, Attorneys Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Defendant (Counterclaim Plaintiff)

Seoul High Court Decision 2017Na2045354, 2045361 decided May 3, 2018

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

The grounds of appeal are examined.

1. Medical practice is performed in a field where highly specialized knowledge is required, and it is very difficult for a general public, other than an expert, to clarify whether he/she has breached his/her duty of care in the medical process of a doctor, and whether there exists a causal relationship between the violation of his/her duty of care and the occurrence of damage. Therefore, if indirect facts exist that make it difficult to deem that there are any other causes than medical malpractice with respect to the occurrence of symptoms in the event of symptoms causing serious consequences to a patient after an operation or an operation, such symptoms may be presumed to be due to medical negligence. In such a case, even in such a case, it is not permissible for a doctor to bear the burden of proof without negligence by estimating the causal relationship between the doctor’s negligence and the gross negligence (see Supreme Court Decision 2011Da10138, Oct. 11, 2012, etc.).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On April 27, 2015, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) operated by the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) (hereinafter “Plaintiff hospital”) from the Plaintiff’s sexual outdoor surgery and council members (hereinafter “Plaintiff hospital”) to injecting the two eye of the burial method of the burial method (hereinafter “the instant surgery”).

B. On April 28, 2015, the day following the surgery, the Defendant re-entered the Plaintiff hospital, and did not appeal inconvenience with respect to the snow operation portion. On May 10, 2015, the Defendant sent a text message to the effect that “On the following day, the Defendant was sent to the Plaintiff hospital a contact with the Plaintiff Kakakakakao Stockholm on the side of the Plaintiff hospital. The left eye is too flurd until the head of the Ama. At first, it was almost two weeks after the surgery was known that the surgery part was open, so hurbly hurthy. After the surgery, the left eye was hurd. one day.” On the following day, the Defendant sent a text message to the effect that “the Plaintiff was given the above symptoms to the Plaintiff hospital, and the Plaintiff was aware of the Plaintiff’s 5th day on the medical record, and that the Plaintiff was aware of the Plaintiff’s 5th day of the Plaintiff’s 0th day of the diagnosis or treatment of the Defendant’s left.”

C. On May 19, 2015, at the “○○○○○○○ Department” on the 22th day of the same month, the Defendant asserted symptoms that “A doctor Nonparty 1 seems to have caused a wound on the left side of the surgery, there is a pain, and there is a lack of eyesight; hereinafter the same shall apply).” After the examination, Nonparty 1 diagnosed the Defendant’s illness as “the Defendant’s disease with marcule, flurine, flurine, and other flurine flurine,” and expressed his opinion that “On June 26, 2015, Nonparty 1 was issued with the Defendant’s disease as “(s) and other central marcule flurine flurine flurine flurine flurine flurine flurine flurite flurg flurg flurg flurg flurg flurg g flurg s.

D. On September 24, 2016 and October 26, 2016, the Defendant underwent various inspections at the △△△ University Hospital for the physical appraisal entrusted by the first instance court. The appraisal shows that “the long distance visual force is 0.7, 0.9, 0.9, 1.0, 1.0, 300, 1.00, 1.25, -1.25 observers in each unit, have no particular problems with the efficiency of visual and oral exercise, and there is no problem with the efficiency of visual and oral exercise. In addition, the Defendant appears to have presented a view that each of the above physical appraisal of △△△△△△△△△△ was made in accordance with the instant medical record, but the Defendant appears to have been in need of periodic tracking observation, but at least KRW 300,000,000,000,000,000,0000,000 won, which was written in the first instance court.” Meanwhile, each of the instant physical appraisal and 1600.

E. On May 29, 2015, the Plaintiff did not provide the Defendant with closed-circuit television (CCTV) images installed in the operating room at the time of the instant operation, but did not provide the Defendant with such images. On February 1, 2016, the said images were deleted after the service contract between the guard company and the Plaintiff hospital was terminated.

3. We examine the above facts in light of the legal principles as seen earlier.

A. On May 10, 2015, before two weeks elapsed after the instant surgery, the Defendant asserted on the side of the Plaintiff hospital that, after the surgery with text messages, the Plaintiff had been showing that there had been symptoms such as this existed from that time. On May 11, 2015, the Plaintiff diagnosed the Defendant on the medical record of this case, and found the Defendant at each left eye or stale inculation. On May 22, 2015, Nonparty 1, who diagnosed the Defendant, expressed his opinion that “The current situation seems to have occurred due to each stale inculation, which appears to have occurred due to each of the following changes: (a) on June 18, 2015, a doctor Nonparty 2 diagnosed the Defendant’s name on each of the following grounds: (b) on each of the following grounds: (c) the Defendant’s physical condition appears to have been damaged due to each of the following changes: (d) the Defendant’s physical condition appears to have been damaged due to each of the instant visual activities.

In full view of such a series of medical treatment, when the Defendant complained of the pain and eyesight of the snow on the left side of the Defendant, symptoms observed in the Defendant’s left side eye, and parts and parts thereof, it is probable that each of them may be presumed to have caused damage to each of the heat caused by damage, etc. during the instant operation, even though each of them could not occur in the normal burial operation, there is little possibility for the physician to lead to each of them due to negligence in the process of the operation, and there is no circumstance that the Defendant suffered from each of the diseases, such as each of the instant surgery, the instant surgery, or the instant surgery, or was conducted or was involved in the accident that could cause each of the above forms of confusion outside of the instant surgery.

B. Meanwhile, each of the results of the first instance court’s request for examination of medical records was based only on very limited data, such as the Plaintiff hospital and ○○○○ Department’s brief medical records, the statement of opinion by ○○○○ Department, and the medical certificate (other than photographs taken by the Defendant’s entire face), and “it appears that there was a scopical or partial scopic column which temporarily appeared after the operation,” not only on the part, etc., but also on the part, etc., that are inconsistent with the shape of the instant single-story film, and even according to the above appraisal entrustment, in order to determine causation between the instant surgery and each of the instant surgery, it is necessary to verify whether the operation was performed after properly inserting the eye protective siren, and if damage was caused by the expansion of the operation, it is necessary to verify whether the shape, location, and location of the scopic scopic joint, and the location of the scopic scopic scir.

C. If so, the court below should have deliberated on the following: (a) there is any kind of reason for which each type of a scambling, which is the same as the sound shown in the instant single story image; (b) there is another operation other than the instant surgery on the left eye; (c) whether the Defendant undergone an operation other than the instant surgery on the left eye; and (d) whether the form of a scambling or a scambling damage caused by other causes; and (c) whether each type of a scambling and a modified body damage can be presumed to have been caused by the Plaintiff’s medical negligence.

Nevertheless, without examining the above circumstances, the lower court determined that the Plaintiff’s negligence in the process of the instant surgery could not be readily concluded that the Plaintiff’s negligence occurred in the course of the surgery, on the grounds that: (a) without examining the aforementioned circumstances; (b) the cognating of the snow on the left side of the Defendant at the time of the physical examination and the influence of the influent treatment; and (c) the result of each medical record appraisal entrustment by the first instance court; and (d) the efficiency of the influence movement without any particular relation to the Defendant’s symptoms. In so doing, the lower court erred by misapprehending the legal doctrine on the proof of causation and negligence in medical lawsuit, thereby failing to exhaust all necessary deliberations, thereby adversely affecting

4. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, 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

Justices Park Jung-hwa (Presiding Justice)