(영문) 부산고등법원 창원재판부 2013.5.3.선고 2012나2906 판결

1. The part against Defendant F in the judgment of the court of first instance is revoked, and the plaintiffs' claim against Defendant F is dismissed.

2. The appeal by the defendant ordinary university hospital is dismissed.

3. The plaintiffs and the defendant F bear the costs of appeal by the defendant Gyeong University Hospital. The costs of appeal by the defendant Gyeong University Hospital are each borne by the plaintiffs.

Purport of claim and appeal

Purport of claim

The Defendants jointly and severally pay to Plaintiff A 105,64,36 won, each of the 58,42,890 won and each of the above amounts to Plaintiff B and C, with 5% interest per annum from May 25, 2010 to the first instance judgment, and 20% interest per annum from the next day to the date of full payment.

Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims against the defendants are dismissed in entirety.

Reasons

1. Basic facts

A. Status of the parties

1) H was dead to receive medical treatment at Defendant Gyeong University Hospital (hereinafter “Defendant Hospital”). Plaintiff A is the wife of H, Plaintiff B, and H’s children.

2) The Defendant ordinary university hospital (hereinafter “Defendant hospital”) is a juristic person for the purpose of medical treatment, etc., and the Defendant F is a major in the internal medicine of the Defendant hospital, which is H’s main medicine, and I is the respiratory medicine of the Defendant hospital that performed the organizational examination with respect to H through the internal vision of the engine.

(b) The details of hospitalization, etc. of H;

1) On April 20, 2010, H was recommended to transfer the radioactive rays on the chest side of the chest to a larger hospital, after being diagnosed of the suspicion of pulmonary tuberculosis or the suspicion of pulmonary pulmonary flaps, while he was receiving treatment at the Gangwon-gun, Gosung-gun, Gosung-gun, Gosung-gun.

2) On April 22, 2010, H visited the Defendant Hospital to the outside and received a medical examination from the J of the respiratory body and doctor. Since the hungmas are doubtful, H conducted a basic inspection on the same day according to the opinion that it is necessary for the prosecutor to conduct the examination. As a result of the examination on the right side of the chest face and chest side, H issued a diagnosis that the shot tuberculosis and the shot shot shot shot shot shot shot shot shot. As a result of the examination on the computer shot shot shot shot shot shot shot shot shot, it recommended that the shot shot shot shot shot and the shot shot shot shot shot shot shot s

3) On April 28, 2010, the doctor J issued a diagnosis on the basis of the aforementioned results of the examination, etc. on April 28, 2010, that it is doubtful that it is suspected of chest CTS (RL), tuberculosis, and cancer, and issued a direction to hospitalization to H on the same day.

4) Around 14:00 on April 29, 2010, H hospitalized in the Repulmonary department of the Defendant hospital for tissue testing. The Defendant hospital conducted blood testing, heart testing, and pulmonary function tests to find out whether blood response to H and other problems such as disability or other long-term diseases are difficult to undergo an examination. The Defendant hospital confirmed that there was no problem that the result of the examination shows that there was no special malfunction in the engine.

5) On April 29, 2010, H was inspected on the chest-type computer single-story on a night basis. On April 30, 2010, H was diagnosed with the symptoms (in the case of non-cellary cell cancer, T2a, N1/N2) and the symptoms of both upper and upper pulmonary tuberculosis, and was recommended to undergo the examination.

6) On April 30, 2010, Defendant F explained to H and Plaintiff A of the need for the test and the procedure, preparation and method of test before and after the test, matters to be considered after the procedure, diagnostic methods other than the above procedure, etc., and explained to the Plaintiff A’s signature on the written consent of test at the site of the engine and written consent of test at the surface of the water surface, and on the form of legacy or merger that may arise after the procedure, Defendant F of the Republic of Korea can die with a code of name on the part of the body, due to mass transfusion or cardiopathy, and that there is a crym, spathy, heart color, spathy, spathy, and respiratory part, etc.

1) 피고 병원에서는 기관지내시경 검사 시 3단계를 거친다. ① 기관지내시경 검사 실 앞에서 시행하는 리도케인 네뷸라이저 흡입은 구강 내 혹은 비강 내로 내시경을 삽 입할 때 환자의 불편감 또는 이물감을 경감하기 위한 국소마취로서, 이 처치를 받아도 환자는 의식이 완전히 깨어 있는 상태이다. ② 환자를 기관지내시경 기계가 부착된 시 술 침대로 옮겨 기관지내시경 시작 직전과 검사 도중 수면유도제인 미다졸람 (midazolam)과 프로포폴(propofol) 을 정맥 내로 주입하여 환자의 수면이 유도되면 검사 를 시작하게 되는데, 이 단계에서도 환자는 스스로 호흡하고 약간의 움직임은 있다. ③ 기관지내시경을 기관지 내로 삽입한 후 리도케인을 기관지 내로 직접 분사하여 환자가 검사 도중 기침을 많이 하지 않도록 유도하여 검사를 시행한다.

2) Around 13:30 on April 30, 2010, H entered the tissue inspection room. Around 14:49 around April 30, 2010, H performed the tissue inspection of the machinery branch through the three stages described in the preceding paragraph. Around 14:49 on April 30, 2010, H performed the tissue inspection of the machinery branch. After collecting the species of the front side of the lebal area of the lebal, the blood transfusion occurred on the upper part of the recovered small species.

3) Upon the occurrence of the blood transfusion from the side of the taken species, I added the amount of biochemical salt and the amount to be used by the Bosstle, which is the sule of the blood transfusion, to the parts of the taken species. However, H began with a pipe of the sule of the sule, who seems to have taken the sule due to the blood transfusion on the part of the body, and began with the sule of the sule on the part of the body, and was suspended by the prosecutor.

4) At around 15:15 on April 30, 2010, I confirmed that he/she had a son’s blood through the internal border, and then administered He/sheast (midazam) in a bottled room, etc., and taken measures, such as artificial absorption and inserting pipes inside the engine. However, H rapidly aggravated the state of his/her blood, such as where he/she continues blood transfusion within the engine.

5) On the other hand, the result of the examination at the Defendant Hospital on April 30, 2010 is as follows.

A person shall be appointed.

1. Cooperative Diagnosis 1: Small-type (Smallmas Robbas AL Robasal) in front of lebals

Dodling

2. Diagnosis 2: Inspection conducted as incomplete due to defective cooperation and blood transfusion d/t poor joints and operations: Cleaning, and Biopsy

Then, the following tests shall be conducted: the cultivation of guest-resistant resistant germs, multi-resistant tuberculosis gene testing, cellology

(d) Emergency operations and death of H;

1) As the H’s state rapidly aggravated, an emergency operation was determined, and an emergency operation was conducted as the house of the chest and the doctor’s seat from around 17:00 to around 18:41, on April 30, 2010, at the house of the head of the Defendant hospital’s chest and the doctor’s seat, a large-scale waste control was implemented. As a result of examining the H’s organization removed from the waste control surgery, it is difficult to determine whether the H’s organization was transferred to another long-term to T2a and N2, but only within the waste, at least, it belongs to at least 3 non-cell plastic cancer at least.

2) On May 26, 2010, H died on May 26, 2010, 10: (a) the direct death was the blood transfusion, and the cause of the blood transfusion was the multiple organ, and (b) the cause of the diversified surgery was the pulmonary pulmonary pulmonary Reconsis.

3) On the other hand, H’s direct merger, which caused the death of H, based on the period of artificial absorption and the records of analysis of the dynamic gas, is the most direct pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary and pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary.

4) We explained to the effect that K, the father of H, and the father of the Plaintiff A, had a sex from a schosome doctor, and had a patient who was aware of anesthesia, and had not been able to find accurate parts and affixed a specific part.

(e) Relevant medical knowledge;

(i)the general process of diagnosis and treatment of cancer;

① In order to conduct a diagnosis of waste cancer through an internal border, first of all, a prior examination shall be conducted to determine where a patient’s physical condition is in a state of undergoing an internal border test. ② On the date of being determined appropriate, the examination shall be conducted to determine whether the patient’s body condition is in a state of undergoing an internal border test. ③ A measure shall be taken to ensure that the patient is in a state of the body of the patient before inserting an internal border view, and ④ a measure shall be taken to ensure that the patient is in a state of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body. ④ Around the body of the body of the body of the body of the body of the body of the body, the body of the body of the body of the body of the body of the body of the body, and the body of the body of the body of the body of the body of the body of the body of the body shall be examined.

(ii) a certificate of merger of an institutional police officer;

A) The merger certificate by an in-house border test can be generally divided into three parts, namely, ① administered, such as addiction, shock, etc. or caused by national anesthesia, ② conducted by the in-house border operation per se of the engine such as ambling and low oxygen transfusions, ③ conducted by bio-explosion, such as ambling and ples, etc.

B) A blood transfusion is one of the important documentary mergers in an institutional terrestrial border test. In a case where a blood transfusion was generated from a schina-type organ schina-type test, schina-type and schina-type test is likely to cause loan blood, and when treatment is delayed, schina-type test can be conducted. He/she may undergo symptoms or anti-schina-type tests that have abnormal blood transfusions or anti-schina-typeal agents, and he/she needs to take care to patients under the law on schina-type and anti-schina-type tests. To prevent this, it is important to check the schina-type, pro-marine, partial schina-type, schina-type, schina-type, schina-type, and schina-type schina-type, and to examine the need and stability of the schina-type patient.

C) Most of the blood transfusions occur at the time of her life-explosion. A sufficient observation is required before her life-explosion. In addition, due care must be exercised to the life-explosion of melting meltingstrophal disease (e.g., declosion cancer or Macephal cancer), which is easy to obtain blood transfusion. Moreover, among the bottles similar to limited occupation-explosion and limited occupation-explosion, the risk of mass-explosion should be high in cases where her life-explosion is discovered with her life-explosion, and where her life-explosion is discovered with her life-explosion.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 3, 5, Eul evidence 1, 2, and 3 (including each number)

Each statement, Eul evidence 4 and 5, each video of the first instance court witness K, and one witness of the trial court;

The results of each entrustment of examination of medical records to the East Asian University Hospital by the court of first instance, the entire pleadings;

purport of this chapter

2. The parties' assertion

A. The plaintiffs' assertion

1) The engine organs have a duty of care to cause rapid growth of foreign substances, other than the air, accompanied by stimulative anesthesias, and to raise blood in the engine site, and if so, they can cause death. Thus, a doctor performing stimulative stimulative stimulative stimulative stimulscing the patient’s anesthesia is confirmed to have sufficient anesthesia, and the patient’s anesthesia is not proper, or the patient’s anesthesia is deemed to have been determined as a patient with no adequate anesthesia in light of the patient’s ordinary body condition, and then completely anesthesia is required to prevent anesthesia, etc. inside the engine by inserting the internal stimulation, and eventually, the engine’s body and stimulative stimulative stimulative stimulscing stimulscing the patient’s body caused damage to the patient’s body without merely confirming whether the anesthesia was properly anesthesia in the engine. Accordingly, Defendant H’s body and stimulic stiting it.

2) The causal relationship between Defendant F or I’s negligence and H’s death is presumed unless the Defendants prove that H had no medical negligence in connection with H’s death, inasmuch as it was inappropriate for H to, or did not have any specific part in, a pre-examination to conduct a pre-inspection on the engine site.

B. Defendant’s assertion

1) Defendant F was merely the principal duties of H, and did not participate in the organization inspection conducted within the engine branch of H.

2 ) H는 검사실로 내려오기 전 병실에서 기관지내시경 환자에게 사전 처치로 투여 되는 페치딘 (투여목적 : 불안감소, 기침억제), 아트로핀(투여목적 : 타액 및 기도의 분비 물을 줄이고 기관지 경련을 막기 위해)을 투여받고, 검사실 앞에서 충분히 리도케인 네 뷸라이저를 흡입하였으며, 검사실로 옮겨져 검사 시작 직전 수면유도제인 미다졸람과 포로포폴을 투여받고, 검사 시작 이후에는 기관지내에도 리도케인 분사를 하고 검사를 진행하였으므로 국소마취가 잘 되지 않은 상태에서 검사가 진행된 것이 아니다. 기관 지내시경 시작 후 우하엽에서 폐암으로 생각되는 작은 종괴가 발견되었는데, 1회 조직 검사 후 폐종괴로부터 출혈이 되고 H가 수면에서 깨어나 움직여 더 이상의 조직검사 를 진행하지 못하였다. 출혈부내에 생리식염수와 지혈용액을 투여하여 지혈되는 것을 확인한 후 검사를 종료하였고, 지혈하는 과정에서 계속된 움직임이 있어서 검사를 지 속하기 어려웠다. H에 대한 기관지내시경 조직검사 시 폐암조직에서 발생한 다량의 출 혈은 폐암조직이 혈관을 다량 함유하고 있기 때문에 일어난 불가항력적인 사항이고, 이에 즉각적인 응급조치를 시행하고 이후 지혈이 되어 검사를 종료한 후 병실로 옮겼 으나, 병실로 옮긴 이후 다시 객혈을 보여 응급조치를 취하였고, 그럼에도 출혈을 보여 출혈의 원인 부위인 폐암을 포함하는 우하엽 절제술을 시행한 것이다 . H가 사망에 이 른 것은 폐암 병기 3기 등의 병증이 존재하였고, 폐종양에 의한 폐암 수술 후 패혈증 및 다발성 장기부전 등이 시작되어 경과가 급격히 빠르게 진행된 것이 주요 원인이므 로, I에게 의료과실이 없다.

3. Determination as to the claim against Defendant F

The plaintiffs' claims against the defendant F should be based on the premise that the defendant F was involved in the organization examination of the local branch of the agency against H. In addition, there is no evidence to acknowledge this. Rather, according to the first fact above, the defendant F merely takes part in the organization examination of H with the internal branch of the defendant hospital's internal branch of the defendant hospital, and the fact that the defendant F was a medical specialist within the body of the defendant hospital. Thus, the plaintiffs' claims against the defendant F against the defendant F do not have any reason for further review.

4. Determination as to the claim against the Defendant hospital

(a) Occurrence of liability for damages;

1) Generally, in order to be held liable for tort due to breach of the duty of care or nonperformance of obligations in medical practice, the existence of human-related relationship should be premised, as in general cases, between the violation of the duty of care in medical practice, the occurrence of damages, and the occurrence of damages. This is an area where medical practice requires highly professional knowledge, but the process of the medical treatment is limited to only the patient himself/herself if he/she becomes aware of part of it, and only the doctor can be aware of it. Since the medical method to achieve the result of the medical treatment depends on his/her discretion, it cannot be seen that whether the direct cause of the damage occurred due to medical negligence is an ordinary person, not an expert, and it is difficult for the patient to medically complete the causal relationship between the occurrence of the duty of care in medical practice and the occurrence of damages, and it is extremely difficult for the patient to prove the causal relationship between the patient's breach of the duty of care in medical practice and the occurrence of damages and the occurrence of damages, unless it proves that the result of the medical treatment is more than nine (3) years prior to such presumption of negligence.

2) When a doctor performs a medical act, such as diagnosis and treatment, the doctor has a 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 benefiting the patient’s life, body, and health. Such duty of care is based on the level of medical practice performed in the field of clinical medicine, such as a medical institution, at the time of performing the medical act, and the level of medical care is generally known to, and recognized by, ordinary doctors at the time of performing the medical act. As such, the level of medical care ought to be grasped at a normative level in light of the medical environment, conditions, and unique characteristics of the medical act (see, e.g., Supreme Court Decision 2009Da45146, Nov. 10, 201

3) Further to the oral argument of the above basic facts, ① it was suspected that there was an infectious pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary organ, and ② there was no special problem with H in-depth pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary.

4) In short, in light of the aforementioned series of circumstances, even if H was a dead cancer at the time of the tissue test, it is consistent with the common sense of ordinary people, even if it is deemed that: (a) as in the instant case, even if it was caused by a sudden change in circumstances immediately after the tissue test; (b) there was no difference between H’s large quantity of blood transfusions generated in the process of the tissue test through the institutional terrestrial border; and (c) such large quantity of blood transfusions were caused by the negligence in the process of the tissue test through the internal border; or (d) even if it was inevitable in the process of the tissue test, it was attributable to the failure to take sufficient measures to prevent blood transfusions from being flowed.

Therefore, as long as the defendant hospital did not prove that the death of H was due to the medical negligence of the I, at all other source, not due to the I's medical negligence, the causal relationship between the negligence of the I and the death of H is presumed, and the defendant hospital, as the employer of I, has the obligation to compensate for the damages suffered by H and the plaintiffs due to the tort committed by the I's negligence.

B. Limitation on liability

Where damage occurs or has been expanded by competition between harmful acts and the victim's causes, even if the factors of the victim's side are irrelevant to the causes attributable to the victim, such as the physical nature of the disease or the risk of the disease, in light of the form, degree, etc. of the disease, if requiring the perpetrator to compensate for the whole damage in light of the form, degree, etc. of the disease is contrary to the principle of comparative negligence, the legal principle of comparative negligence may apply mutatis mutandis, and the factors of the victim who contributed to the occurrence or expansion of the damage may be considered (see, e.g., Supreme Court Decision 2010Da20563, Jul. 8, 2010).

As seen above, the fact that there was an opinion corresponding to three non-cell pulmonary cancer as a result of the tissue examination of h from the bomb pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary ect.

Therefore, considering the above various circumstances, it is reasonable to limit the liability ratio of the defendant hospital to 60%.

C. Scope of damages

1) Loss of lost income

H Damage from lost income caused by death due to medical malpractice is KRW 71,565,311, calculated at the present price at the time of death, based on the facts of recognition and evaluation as described below, based on the following: (a) 5/12 per month, as described in paragraph (b).

(A) the facts of recognition and evaluation;

(1) Personal information: Gender, date of birth, age, and name of lease shall be as stated in the column for basic matters in the attached Form of calculation of damages.

② The maximum working age and income: The deceased’s actual income shall be calculated on the 22th day of August by August 26, 2016, which served as the maximum working age, based on the urban daily wage, until August 26, 2016.

From August 27, 1997, the Plaintiffs asserted that from Sin-si, Sin-si, 1027-3, the Plaintiff operated an enterprise engaging in construction machinery rental and contracting business under the name of Sinsan-dong, 1027-3, up to the day immediately before the death of the said enterprise. The Plaintiffs asserted that the Plaintiff received KRW 8,258,112 from January 1, 2010 to March 31, 2010, which was three months before the death of the said accident, and thus, the Plaintiffs received KRW 2,752,704 every month.

According to the results of each fact-finding inquiry with respect to the Tong Tax Office of the first instance court, it is difficult to recognize the fact that H’s global income amount from January 1, 2010 to March 31, 2010 was new one with 8,258,112 won (average 2,752,704 won per month). However, according to the result of the fact-finding with respect to the Tong Tax Office of the first instance court, it is difficult to recognize the fact that the global income amount belonging to the year 1, 2009 was 10,532,310 won (average 87,692 won per month, KRW 87,6920 per month, and KRW 10,000 per month, and KRW 2,000 per month from January 1, 2010 to March 31, 2010, and there was no difference in the size of H’s income from October 31, 2010 to 310.

(3) Cost of living: 1/3 of revenues.

[Ground of recognition] Facts without dispute, Eul's evidence 6-1 and 2, the purport of the whole pleadings

B) Calculation

The same shall apply to the column of lost income in the attached table of calculation of damages.

Funeral expenses: 3,000,000 won (Plaintiff A’s expenditure)

3) Limitation on liability

A) Liability ratio of the Defendant Hospital: 60% (see above paragraph (b)).

B) Calculation: As stated in the column of comparative negligence in the attached Form of damages calculation sheet.

4) Consolation money

A) Reasons for consideration: H and the plaintiffs' age, occupation, family relation, circumstances and result of their death

There are various circumstances in which the argument in the instant case was conducted.

(b) the determined amount;

H: 20,000,000

Plaintiff: 10,000,000 won

Plaintiff B, C: each of 5,000,000 won

5) Inheritance relations

(a) Property subject to inheritance: 62,939,186 won (H’s lost income 42,939,186 won + H’s consolation money

20,000,000 won

B) Calculation of shares in inheritance;

Plaintiff A (3/7): 26,973,936 won (62,939,186 won x 3/7)

Plaintiff B and C (217) : 17,982,624 respectively (62,939,186 won x 2/7)

D. Sub-committee

Therefore, the defendant hospital is obligated to pay to the plaintiff A 38,773,936 won (26,973,936 won for inheritance + funeral expenses of KRW 1,800,000 for consolation money + KRW 10,000 for consolation money), the plaintiff B, and C, respectively, 22,982,624 won for the plaintiff B, and each of the above money (17,982,624 won for inheritance + KRW 5,00,000 for consolation money + KRW 5,000 for consolation money), and to pay damages for delay at a rate of 20% per annum prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings until May 26, 2010, which is the first instance judgment of which it is deemed reasonable to dispute the existence or scope of the defendants' obligation to perform.

5. Conclusion

Therefore, the plaintiffs' claims against the defendant hospital are justified within the above scope of recognition, and the remaining claims are dismissed as without merit. The plaintiffs' claims against the defendant F are dismissed as it is without merit. The judgment of the court of first instance is unfair in some different conclusions. Thus, the part against the defendant F in the judgment of the court of first instance is revoked, and the plaintiffs' claims against the defendant F in the judgment of the court of first instance is dismissed, and the appeal by the defendant hospital is dismissed as it is without merit. It is so decided as per Disposition.