School of Annual Generation (Attorney Park Young-chul et al., Counsel for the plaintiff-appellant)

Defendant 1 and four others (Attorneys Shin Jae-ho et al., Counsel for the defendant-appellant)

November 11, 2014

Seoul Western District Court Decision 2011Da62048 Decided March 26, 2014

1.The judgment of the first instance shall be modified as follows:

A. Defendant 4 and Defendant 5 jointly and severally with Defendant 4 and Defendant 5, as well as Defendant 1, Defendant 2, and Defendant 3, jointly and severally with Defendant 4 and Defendant 5, respectively, shall pay 21,609,313 won and each of them, 5% per annum from March 5, 2014 to January 23, 2015, and 20% per annum from the next day to the day of full payment.

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

2. The total costs of the lawsuit are borne by the Defendants.

3. The amount under paragraph (1) may be provisionally executed.

1. Purport of claim

Defendant 4 and Defendant 5 jointly and severally paid to the Plaintiff KRW 86,935,450, Defendant 1, Defendant 2, and Defendant 3, jointly and severally with Defendant 4 and Defendant 5, the amount of KRW 21,73,862 out of the above amount and the amount of money calculated at the rate of 5% per annum from the day following the service of the application for change of the purport of the claim and the cause of the claim as of March 5, 2014 until the judgment of the appellate court is rendered, and 20% per annum from the next day to the day of full payment (the Plaintiff partially reduced its claim for damages for delay at the trial).

2. Purport of appeal

A. The plaintiff

The part of the judgment of the first instance against the Plaintiff regarding the order to pay the following amount shall be revoked. Defendant 4 and Defendant 5 jointly and severally with Defendant 4, Defendant 1, Defendant 2, and Defendant 3 shall pay 20,546,025 won each share among the above amount, and 5% per annum from February 16, 2008 to the date of the first instance judgment, and 20% per annum from the next day to the date of full payment (the Plaintiff’s claim for damages for delay was partially reduced to the extent that the purport of appeal is also reduced to the extent of its reduction).

B. The Defendants

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the above revocation part is dismissed in entirety.

1. Facts of recognition;

(a) Conclusion and progress of medical treatment contracts;

(1) The Plaintiff is operating the Medical University Symnae Hospital (hereinafter “Plaintiff Hospital”). Defendant 1, Defendant 2, Defendant 3, and Defendant 4 are the children of Nonparty 1 who died while receiving medical treatment at the Plaintiff hospital, and Defendant 5 is the husband of Nonparty 2.

(2) On February 16, 2008, Nonparty 1 was diagnosed to be suspected of the closure at a nearby hospital, and entered into a medical contract with the Plaintiff (hereinafter “instant medical contract”) with the Plaintiff, who was admitted to the Plaintiff’s hospital. In this case, Defendant 4 was the guardian of Nonparty 1, and Defendant 5 agreed to pay the medical expenses under the instant medical contract jointly and severally with Nonparty 1, as a joint guarantor, to the Plaintiff.

(3) In order to verify whether the waste cancer occurred on February 18, 2008, Nonparty 1 was an end-of-life tissue test using the engine diameter at the Plaintiff hospital, which occurred due to an excessive re-explosion, etc. Accordingly, the medical personnel at the Plaintiff hospital performed the heart organs, etc., thereby restoring the heart function and attaching an artificial reaculation device. However, Nonparty 1 continued plant life-livering rate due to low oxygen brain damage.

(4) As above, Nonparty 1 was under continuous plant-related treatment, such as anti-biological medication, artificial nutrition supply, and water supply, with the attachment of artificial absorption at the Plaintiff hospital’s middle-patient room.

B. Lawsuit suspending life-sustaining treatment

(1) On June 2, 2008, Nonparty 1 (Defendant 4’s appointment as a special representative and proceeding the lawsuit) and Defendant 1, Defendant 2, Defendant 3, and Defendant 4 filed a lawsuit against the Plaintiff seeking removal of life-sustaining treatment equipment (Seoul Western District Court 2008Gahap6977, hereinafter “the lawsuit seeking suspension of life-sustaining treatment”). On June 11, 2008, the above complaint was served on the Plaintiff.

(2) On November 28, 2008, the above court dismissed Defendant 1, Defendant 2, Defendant 3, and Defendant 4’s claims, and accepted only Nonparty 1’s claims, and rendered a judgment that “the Defendant (the Plaintiff of this case) would remove an artificial absorption against Nonparty 1,” and did not attach a declaration of provisional execution due to the nature of the claim (hereinafter “the judgment of suspension of life-sustaining treatment”).

(3) Although the Plaintiff filed an appeal against the Plaintiff, on February 10, 2009, the dismissal judgment was pronounced (Seoul High Court 2008Na116869 and the provisional execution was not attached by nature of the claim). The Plaintiff filed a second appeal, but the Supreme Court rendered a final judgment dismissing life-sustaining treatment in the first instance (Supreme Court en banc Decision 2009Da17417 Decided May 21, 2009) and the judgment dismissing the first instance judgment became final and conclusive as it is.

(c) Removal and death of an artificial smoking machine;

On June 23, 2009, the medical personnel of the Plaintiff hospital removed the artificial smoking equipment attached to Nonparty 1 in accordance with the judgment of discontinuance of life-sustaining treatment which became final and conclusive around 10:30 on June 23, 2009, but Nonparty 1, after that, after that, died on January 10, 2010.

(d) Details of medical expenses;

(1) The total medical expenses from February 16, 2008 to January 10, 2010, which is the starting date of treatment under the instant medical contract, are KRW 87,119,853, and the unpaid medical expenses are KRW 86,969,850.

(2) From June 2, 2008, the non-party 1 and the non-party 1 filed a lawsuit seeking discontinuance of life-sustaining treatment, until May 21, 2009, the judgment of discontinuance of life-sustaining treatment became final and conclusive, the cost of maintaining the artificial smoking equipment is KRW 1,237,398, and there was no patient’s charge related to maintaining the artificial smoking equipment from the next day to June 23, 2009.

(3) The selective medical expenses incurred in the course of Nonparty 1’s medical examination and treatment are KRW 5,336,032. Among them, the selective medical expenses related to the tissue life examination on February 18, 2008 are KRW 34,400 (=28,665 won for the selective medical examination on the institutional police station + KRW 5,735 won for the selective medical examination on the institutional police station).

(4) On June 23, 2009, Nonparty 1 was transferred to a higher-class hospital. Nonparty 1’s fee of KRW 66,690,000 for the higher-class hospital accrued until Nonparty 1 died.

(e) Inheritance relationship;

Following the death of Nonparty 1 on January 10, 2010, Defendant 1, Defendant 2, Defendant 3, and Defendant 4, who is his child, comprehensively succeeded to the rights and obligations of Nonparty 1 in the proportion of inheritance 1/4.

[Ground of recognition] The facts without dispute, Gap 1 and 2 evidence, Gap 3's evidence 1 to 3, Gap 6's evidence 1 to 3, Gap 7 and 8's evidence, and the purport of the whole pleadings

2. Determination as to the cause of action

According to the above facts, barring any special circumstance, Defendant 4 and Defendant 5 are jointly and severally liable to pay the Plaintiff medical expenses of KRW 86,935,450 (=86,969,850 - 34,400 (the selective medical expenses related to the organization birth examination of February 18, 2008) and the Plaintiff voluntarily claims the remainder after deducting the selective medical expenses of February 18, 2008), Defendant 1, Defendant 2, and Defendant 3 as Nonparty 1’s heir, jointly and severally with Defendant 4 and Defendant 5, the amount equivalent to each inheritance share of KRW 86,93,862 (=86,935,450 x 1,450), and delay damages therefrom).

3. Judgment on the defendants' assertion

(a) Claim for prohibition of a claim for medical expenses due to breach of duty to explain and tort;

(1) Summary of the assertion

In addition, the Plaintiff did not explain Nonparty 1 the necessity of an in-house border test, the probability of misperception in cases of non-party 1’s failure to conduct an in-house border test, the risk of brain damage, etc. following an in-house border test, and did not perform an in-depth test decision, negligence in the course of procedure, first aid, violation of a elective medical contract, etc. In addition, the Plaintiff committed tort against Nonparty 1 by failing to perform his/her duty of care as a good manager among his/her structural colons. The Plaintiff caused low-carbon cerebral brain damage by causing mass transfusions due to damage to his/her blood organ, and thereafter continued medical treatment or preservation for life in a plant condition. Accordingly, treatment performed from February 18, 2008 to January 10, 2010, which was performed by Nonparty 1 after an in-house border examination, cannot be claimed against the Defendants during the pertinent period of time, since it did not follow the principal obligation, or was performed as part of damages arising out of default or tort.

(2) Relevant legal principles

A physician’s obligation to treat a patient, as a result of the performance of the same result as the treatment of a disease, shall be deemed not to be the obligation, but the obligation to take necessary and appropriate medical measures in light of the current medical level, namely, the obligation to perform the duty of care as a good manager, so even though the above duty of care was fulfilled, if the disease was not treated as a result of the treatment, the doctor may claim medical expenses. However, if the patient’s physical function was not cured due to the doctor’s failure to perform the duty of care as a good manager, and if the treatment was performed only to the extent that the recovery of the post-treatment or prevention of any further aggravation after the damage was inflicted, the doctor’s treatment act is not in accordance with the principal place of the medical treatment obligation, or was performed as part of the damage, and thus, the hospital cannot claim for the payment of the surgery expenses or medical expenses against the patient (Supreme Court Decision 92Da15031 delivered on July 27, 1993).

(3) Determination on the assertion regarding breach of duty to explain

According to Gap evidence Nos. 4 and 5 evidence Nos. 1 and 2, non-party 1, defendant 2, defendant 3, and defendant 4 (the non-party 1 dies and takes over the lawsuit against the other defendant 1, etc. among the lawsuit) against the plaintiff, ① negligence in the decision-making process of an internal autopsy test, ② negligence in the first-aid procedure, ④ violation of the first-aid treatment, ⑤ breach of the duty to explain a merger certificate of an internal autopsy test, ⑤ breach of the explanation duty on the attachment of an artificial autopsy, ④ bodily damage, personality right violation due to the excessive treatment, viii family relationship division according to the isolation of the patient room, ② infringement of the expectation right of the non-party 1, ④ infringement of expression, ④ infringement of the right to claim compensation for damages (the Seoul Western District Court Decision 2009hap9133, hereinafter referred to as "medical lawsuit"), and the Seoul High Court found only the remainder of the appeal by the plaintiff 1 and the plaintiff 201.

However, in this case where there is no evidence to acknowledge the medical negligence in the course of performing the internal border examination, there is a proximate causal relationship between the plaintiff hospital's duty to explain and the non-party 1, as well as the result of death after damage to low-carbon brain, or it is difficult to view it to the extent that it has reached the same degree as that of the doctor's duty of care required in the course of medical invasion (see Supreme Court Decision 2001Da52538, Nov. 9, 2001). This part of the defendants' assertion is without merit.

(4) Determination on the assertion regarding breach of selective medical care

According to Gap evidence Nos. 4 and 5-1 and 2, the non-party 1 selected non-party 2, who is a professor within the Plaintiff hospital and a professor within the Plaintiff hospital, upon applying for an examination of the diagnosis of the diagnosis of the diagnosis of the diagnosis of the diagnosis of the diagnosis of the engine. However, on February 18, 2008, the non-party 1 was subject to an examination of the diagnosis of the engine from the Plaintiff hospital and the non-party 3, an instructor, without being notified of the change of the doctor’s diagnosis of the diagnosis of the diagnosis of the hospital. In the above medical lawsuit filed by the defendant 1, etc., it can be recognized that the consolation money of KRW 40,000 is recognized as the violation of the duty of care and the duty of explanation of the Plaintiff hospital, and there is no evidence to acknowledge the negligence in the procedure of the diagnosis of the diagnosis of the engine of the non-party 3, and there is no reason to deem that there is proximate causal causal relation between the above elective examination and the non-party 1’s disease.

(5) Determination as to the remainder of nonperformance and tort

As seen above, it can be acknowledged that Defendant 1 et al. filed a lawsuit against the Plaintiff against the Plaintiff that all of the remainder of the claim is dismissed in addition to consolation money on the ground of elective medical breach of duty of care and breach of duty of explanation. Thus, in treating Nonparty 1, the medical personnel of the Plaintiff hospital did not have the same medical negligence as the Defendants asserted in the medical treatment of Nonparty 1, or that the Defendants violated the duty

B. Demanding breach of duty to explain and defects in declaration of intent under the medical agreement

(1) Summary of the assertion

Inasmuch as a medical contract should be concluded for each individual medical treatment, there must be an individual doctor’s agreement. If a patient did not fully explain the content, necessity, and anticipated risk of occurrence at the time of concluding the medical contract, it infringes on the patient’s right to self-determination, and such medical treatment cannot be deemed included in the content of the medical treatment contract. Even if the Plaintiff hospital’s medical act was performed after the occurrence of significant consequences that did not explain, it is difficult to view that the medical contract was concluded, and thus, it is difficult to claim the medical

(2) Determination

As alleged by the Defendants, it cannot be deemed that the medical contract was not established solely on the ground of the violation of the duty to explain, and there is no evidence to acknowledge that the medical personnel in the Plaintiff hospital did not have any medical negligence while performing the institutional local landscape test on Nonparty 1, or breached the duty of care as a good manager. Therefore, this part of the Defendants’ assertion is without merit.

C. Claim for prohibition of medical expenses related to offsetting negligence

(1) Summary of the assertion

Even if the comparative negligence (or limitation of liability) was set off in a lawsuit claiming damages due to medical malpractice, the hospital cannot claim medical expenses equivalent to the patient's percentage of fault with respect to medical expenses for the transfer of damage, etc.

(2) Determination

The Defendants asserted this part on the premise that the Plaintiff had medical malpractice. However, as seen above, there is no evidence to acknowledge that there was medical malpractice to the Plaintiff hospital or that there was a good manager’s breach of duty of care. Therefore, this part of the Defendants’ assertion is without merit without examining the remainder of the issue.

D. The assertion regarding the termination of medical contract

(1) Summary of the assertion

On February 18, 2008, Nonparty 1, at the Plaintiff hospital, caused mass transfusions among the tissue explosions through the engine schipation, and the Defendants were suffering from low oxygen brain damage and the Defendant requested the Plaintiff hospital to continue to suspend treatment and discharge from the hospital. However, the Plaintiff hospital refused to file a lawsuit seeking discontinuance of life-sustaining treatment. Accordingly, the Defendant filed a lawsuit seeking discontinuance of life-sustaining treatment. As such, the medical contract of this case was terminated on June 11, 2008, on which the written complaint for discontinuance of life-sustaining treatment was served on the Plaintiff. Thus, the Plaintiff cannot claim medical expenses incurred thereafter.

(2) Determination

㈎ 먼저 소외 1을 제외한 나머지 피고들이 원고와 의료계약을 체결하였다고 인정할 증거가 없으므로, 피고들 자신이 이 사건 의료계약을 해지할 수 있음을 전제로 한 주장은 나머지 점에 관하여 더 나아가 살펴 볼 필요 없이 이유 없다.

㈏ 다음으로, 소외 1이 이 사건 의료계약을 해지하였는지에 관하여 본다.

As seen above, on February 18, 2008, Nonparty 1: (a) caused mass transfusions during the formation of life-sustaining treatment at the Plaintiff hospital; (b) caused low oxygen brain damage; and (c) brought a lawsuit seeking discontinuance of life-sustaining treatment against the Plaintiff; (b) Defendant 1, etc. was appointed as a special agent. On November 28, 2008, the first instance court issued an order to remove Nonparty 1’s artificial absorption on the ground that the Plaintiff filed an appeal; (c) issued a judgment dismissing the appeal; and (d) issued a judgment suspending life-sustaining treatment on May 21, 2009 upon the judgment dismissing the application for life-sustaining treatment; and (e) based on the patient’s understanding that the patient’s right to life-sustaining treatment can be presumed to have been discontinued on the ground that it could not be objectively determined on the ground that the patient’s refusal of life-sustaining treatment at the time of death, including the patient’s refusal of life-sustaining treatment; and (e) based on the patient’s understanding of value and value of life-sustaining treatment.

In light of the above circumstances, when the judgment on whether Nonparty 1 entered the irrecoverable stage of death, whether Nonparty 1’s presumed intention of discontinuance of life-sustaining treatment can be recognized, that is, when the judgment of the Supreme Court became final and conclusive on May 21, 2009, it is reasonable to view that Nonparty 1’s intention, which is presumed through the discontinuance lawsuit for life-sustaining treatment and the discontinuance judgment of life-sustaining treatment, is an intention to face natural death by removing artificial smoking apparatus among the series of medical treatments conducted pursuant to the instant medical contract. Thus, the treatment to be discontinued by the Plaintiff hospital upon termination, is limited to artificial smoking apparatus attachment, and other medical treatment necessary for life-sustaining treatment (such as human nutrition supply, water supply, antibioticsing, etc.), Nonparty 1’s removal of artificial smoking apparatus after June 23, 2009, and maintained the medical contract for life-sustaining treatment and life-sustaining treatment as seen above.

Therefore, as a medical contract is valid with respect to the part of the medical expenses before May 21, 2009, the Defendants are obligated to pay all medical expenses. As to the part of the medical expenses incurred from May 22, 2009, the Defendants are obligated to be exempted from liability for payment only for the expenses related to the artificial smoking and to pay the remainder of the medical expenses. However, as seen above, since the patient’s charges related to the maintenance of the artificial smoking machine did not occur from May 22, 2009 to June 23, 2009, the Defendants’ assertion on this part is without merit.

E. Claim for deduction

(1) Selective treatment costs

㈎ 피고들은 먼저, 관련 의료소송에서 원고 병원의 선택진료의무위반이 인정되었으므로 해당 선택진료비는 공제되어야 한다고 주장한다.

On the other hand, in the medical lawsuit brought by the defendant, the consolation money was recognized due to the plaintiff's elective medical doctor's breach of duty of care, and breach of duty of explanation, but the plaintiff voluntarily deducted the relevant selective medical expenses in the lawsuit of this case and sought only the remainder of the medical expenses. Thus, the above assertion by the defendants is without merit.

㈏ 피고들은 다음으로, 2008. 7. 23. 서면으로 선택진료 해지의사표시를 하였으므로, 그 이후의 선택진료비는 공제되어야 한다고 주장한다.

Comprehensively taking account of the overall purport of the arguments in the statement of Nonparty 4 and Nonparty 1’s children, Nonparty 4, who were Nonparty 1’s fraudulent act, applied for termination of selective medical examination on July 23, 2008, Defendant 1 again applied for selective medical examination on August 8, 2008, Defendant 4 applied for selective medical examination. Defendant 4 applied for selective medical examination on March 2, 2009; Defendant 6 applied for selective medical examination on July 23, 2008, the selective medical examination was terminated; Defendant 1 applied for selective medical examination on July 23, 2008, the aggregate of selective medical examination expenses from July 23, 2008 to August 7, 2008, which was before the date when selective medical examination was terminated. Therefore, the remainder of the Defendants’ assertion is without merit.

(2) Fees for higher-class wards;

The Defendants asserted that, although the Plaintiff hospital did not request the use of the higher-class hospital on the part of the Defendant, the higher-class hospital fee should be deducted as it was transferred from the middle-class patient room to the higher-class hospital.

In full view of the purport of the entire pleadings in the statement of evidence No. 9, Defendant 4, the guardian of Nonparty 1, applied for the use of a higher-class hospital on June 23, 2009 and transferred Nonparty 1 to a higher-class hospital, Nonparty 1, a higher-class hospital. Thus, the above assertion by the Defendants is without merit (the Defendants asserted that the Plaintiff applied for the signature of the higher-class hospital at the request of the Plaintiff, but there is no evidence to acknowledge it).

F. Claim regarding medical expenses after a judgment suspending life-sustaining treatment became final and conclusive

(1) Summary of the assertion

Even after the judgment of discontinuance of life-sustaining treatment became final and conclusive by the Supreme Court, the Plaintiff hospital did not discontinue life-sustaining treatment; rejected the Defendants’ continued removal of artificial smoking equipment and request for transfer to hospice hospital; on June 23, 2009, Nonparty 1 moved to one person room and removed the artificial smoking equipment; and neglected it. Accordingly, the Supreme Court’s decision of discontinuance of life-sustaining treatment after May 21, 2009, which became final and conclusive.

(2) Determination

The judgment of discontinuance of life-sustaining treatment becomes final and conclusive by the Supreme Court on May 21, 2009, and the fact that the medical personnel of the Plaintiff hospital removed the artificial smoking machine against Nonparty 1 on June 23, 2009 after approximately one month from the medical personnel of the Plaintiff hospital.

However, as seen earlier, Nonparty 1’s doctor presumed through a judgment suspending life-sustaining treatment is interpreted as an intention to accept natural death by removing an artificial smoking apparatus among a series of medical treatments conducted in accordance with the instant medical contract. As such, the treatment to be discontinued due to termination shall be limited to the attachment of an artificial smoking instrument. As such, it is reasonable to deem that the medical treatment to be discontinued by the Plaintiff hospital is limited to the installation of an artificial smoking instrument. The medical treatment to maintain the minimum life necessary for life-sustaining life (such as supply of human nutrition, water supply, antibiotics, etc.) and the part concerning the use of sick rooms is maintained in

However, from May 22, 2009 to June 23, 2009, there was no patient's own share of the patient related to the artificial smoking machine, and in order to remove the artificial smoking machine, it is necessary to prepare for the removal of the artificial smoking machine in consideration of the patient's safety. There is no circumstance to deem that the Plaintiff hospital committed any error in the process of removing the artificial smoking machine, or delayed the removal of the artificial smoking machine in order to obtain benefits, such as medical expenses, etc., and even if the removal of the artificial smoking machine was done by Nonparty 1, it cannot be concluded that the removal delay of the artificial smoking machine was caused by Nonparty 1's life extension due to the delay in the removal of the artificial smoking machine and increased medical expenses due to the death of Nonparty 1. In addition, since the Plaintiff hospital continued to provide medical treatment for the minimum life maintenance required for the joint signature of Nonparty 1 who removed the artificial smoking machine, it cannot be deemed to have neglected Nonparty 1.

Ultimately, this part of the defendants' assertion is without merit.

G. Therefore, Defendants 4 and 5 jointly and severally liable to the Plaintiff for medical expenses amounting to KRW 86,437,255 (i.e., KRW 86,935,450; KRW 498,195). Defendant 1, Defendant 2, and Defendant 3, jointly and severally with Defendant 4 and Defendant 5, are the amount equivalent to each inheritance share of KRW 86,437,255 (i.e., KRW 86,437,25 x below KRW 1/45 x below KRW 1/45), and each of them is liable to pay damages for delay at the rate of 21,609,313 (i.e., the amount equivalent to each inheritance share of KRW 86,437,25 x below KRW 1/5) from March 5, 2014 to the date the application for change of the purport of the claim and the cause of the claim was served.

4. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is so decided as per Disposition by accepting part of the plaintiff's appeal and changing the judgment of the court of first instance.

Judges Lee Jin-jin (Presiding Judge)

Note 1) The “21,73,862 won” stated in the petition of appeal appears to be a clerical error in the amount of KRW 20,546,025 (=21,73,862 won in claim amount - amount of KRW 1,187,837 in the first instance judgment).

Note 2) Article 47 of the Rules of Civil Procedure