[1] Whether a patient is already aware of, or has to explain about, the medical personnel (negative), and in a case where a patient knowingly refuses to provide medical treatment in accordance with his/her own decision even though he/she was aware of the risk, whether a medical personnel can be held liable for breach of the duty to explain (negative in principle)

[2] The case holding that in a case where Gap et al. was killed in the course of being receiving an emergency scopic care after receiving an emergency scopic care after the outbreak of a heart due to the respiratory disorder, etc. from around 29 weeks of pregnancy, and refused to be hospitalized in the breast-ray and the delivery room, and he was given birth after receiving an emergency scopic care after receiving an emergency scopic care due to the respiratory disorder, but was receiving an infant’s death, the medical personnel of Eul et al. cannot be deemed to have violated the duty of explanation or to be negligent

[1] According to the individual’s personality right and the right to pursue happiness as stipulated under Article 10 of the Constitution, the patient has the right to decide on how to maintain the life and body function and to choose medical practice. Therefore, even though the patient has the right to consent or refuse the medical examination and treatment recommended by the medical personnel according to his/her own decision, it is difficult for the medical personnel to make a practical self-determination in the absence of medical knowledge. As such, the medical personnel has a duty to explain matters considered important to determine whether to give consent or refuse the medical examination and treatment, such as symptoms, contents and necessity of the medical examination and treatment, anticipated risks, etc. of the patient without the medical examination and treatment along with anticipated risks. Meanwhile, the medical personnel’s explanation is aimed at guaranteeing substantial self-determination by supplementing the lack of medical knowledge and knowledge. Therefore, it is not necessary for the patient to already know or provide an explanation to the patient. In such cases, if the patient refuses the medical examination and treatment based on his/her own decision, the medical personnel’s responsibility cannot be determined by taking account of the expertise, level of experience and knowledge of the patient at issue.

[2] The case holding that in a case where Party A refused to provide medical treatment based on its own decision, considering the risk of refusing to provide chest radiation photographing, etc., although Party A knew or explained from the hospital’s medical staff, it appears that Party A refused to provide medical treatment based on its own decision, considering the need for medical treatment recommended by the medical staff or the risk of refusing to provide medical treatment, and the patient’s right to select a patient cannot be respected if Party A refused to provide medical treatment based on one’s own decision, and the patient was aware of the need for medical treatment recommended by the medical staff or the risk of refusing to provide medical treatment, and the patient was aware of the risk of refusing to provide treatment due to one’s own decision, and the patient’s refusal to provide medical treatment is not likely to be at risk of refusing to refuse to give a pregnancy, and the patient was not at risk of being at the risk of refusing to provide medical treatment due to her own decision, and thus, Party A was not at fault with the medical staff’s own decision, and the same applies to the case where Party A was not at the hospital’s fault.

[1] Article 10 of the Constitution, Article 750 of the Civil Code / [2] Article 10 of the Constitution, Article 750 of the Civil Code

[1] Supreme Court Decision 2009Da95714 decided Mar. 25, 2010 (Gong2010Sang, 812)

Plaintiff 1 and one other (Law Firm CSS, Attorney Lee Jae-in, Counsel for the plaintiff-appellant)

The Korea Educational Institute of Hanyang (Attorney Cho Young-chul, Counsel for defendant-appellant)

Seoul High Court Decision 2008Na83761 decided August 20, 2009

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 3

A. According to the individual’s personality right and the right to pursue happiness as stipulated under Article 10 of the Constitution, the patient has the right to decide on how to maintain the life and body function and to choose medical practice. Therefore, even though the patient has the right to consent or refuse medical treatment recommended by the medical personnel according to his/her own decision, it is difficult for the medical personnel to make a substantial self-determination in the absence of medical knowledge. As such, the medical personnel has the duty to explain matters deemed important for determining whether to give consent or refuse medical treatment, such as symptoms of the patient, contents and necessity of medical treatment, anticipated risks, etc., as well as anticipated risks, etc. (see Supreme Court Decision 2009Da95714, Mar. 25, 2010, etc.).

On the other hand, the explanation of such medical professionals is aimed at ensuring the substantial right to self-determination by supplementing inadequate medical knowledge. As such, there is no need for the patient to know about the medical knowledge or explain the regular contents. In a case where the patient refuses medical treatment in accordance with his/her own decision despite being aware of the risk, barring any special circumstance, he/she cannot be held responsible for failing to explain. In such a case, whether the patient is already aware of the content, the determination can be made by comprehensively taking account of expertise in the relevant medical knowledge, the patient’s existing experience, the level

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

(1) Plaintiff 1 (1964), who had worked as a nurse for about 10 years, repeated four occasions after marriage around July 1999. On May 2004, the Plaintiff 1 (1964) was pregnant with in her body fertilization and embryo transplant. Since being hospitalized for about 5 days due to a miscarriage, around nine weeks of pregnancy, the Plaintiff 1 received treatment at the Hanyang University Hospital (hereinafter “Defendant Hospital”). The Plaintiff 1 lost her fetus as a natural miscarriage around 11 week of pregnancy, and was subject to her fluoral radiation photography on August 8, 2004, and then received her fluoral fluoral surgery on August 10, 2004.

(2) On November 14, 2004, around 29 weeks of pregnancy, Plaintiff 1 appealed to the emergency room of the Defendant hospital and complained of “the respiratory distress, early respiratory, skin, and symptoms of a musta,” etc. Around November 14, 2004, Plaintiff 1, who was in the emergency room of the Defendant hospital, complained of “the respiratory distress, early respiratory, skin, and symptoms of a mustache,” etc. At the time, the active surgery was 130/80mm, 72 metreg, beer and beer, 20/minutes, and 36.8cc., at the time, there was symptoms that the respiratory disorder aggravated.

(3) 피고 병원 의료진은 19:05경 원고 1에 대하여 2ℓ/분의 속도로 산소를 공급하였고, 동맥혈가스분석검사 결과 pH 7.488, PaO₂(산소 분압) 73.7㎜Hg, SaO₂(산소포화도) 97%, PaCO₂(이산화탄소 분압) 25.4㎜Hg, HCO₃(중탄산염) 18.8㎜ol/ℓ로 저산소증에 대한 보상기전으로 과호흡이 유발되고 있는 상태였다.

(4) At around 19:24, the medical doctor Nonparty 1 in the Defendant Hospital prescribed chest X-ray against Plaintiff 1, but the Plaintiff 1 refused to do so on the ground that the nurse was pregnant, and the nurse in the Defendant Hospital recommended chest 1 to do so even around 19:50, but the Plaintiff 1 refused to do so for the same reason.

(5) 원고 1은 19:54경 시행된 동맥혈가스분석검사 결과 pH 7.451, PaO₂ 52.9㎜Hg, SaO₂ 87.6%, PaCO₂ 28.3㎜Hg, HCO₃ 19.3㎜ol/ℓ로 저산소증이 심화된 상태였고, 피고 병원 의료진은 원고 1에 대하여 벤튜리마스크를 이용하여 12ℓ/분의 속도로 산소를 공급하였다.

(6) At around 21:20, the mountain father and the doctor non-party 2 in the Defendant Hospital confirmed the heart of both fetuses with the plaintiff 1 in an emergency room, and explained the necessity of hospitalization in the delivery room for monitoring the fetus heart and preventing the progress, and issued a hospitalization. However, the plaintiff 1, around 21:25, refused hospitalization in the delivery room, while the plaintiff 1, at around 21:25, discharged the plaintiff 1 from the delivery room, on the ground that there is a serious problem on the respiratory side than the oxygen.

(7) At around 22:00, Plaintiff 1 consented to chest raying only when the oxygen intensity has fallen to 48%. Accordingly, as a result of the implementation of chest raying, the medical personnel at Defendant Hospital confirmed the symptoms suspected of suffering from sulmatosis and pulmonary skin, and, around 22:15, replaced the Plaintiff with an artificial absorptionr at around 22:17, while the Plaintiff injected urine urology (lasix).

(8) However, at around 22:25, Plaintiff 1 received cardiopulmonary resuscitation and received cardiopulmonary resuscitation at around 22:28, but was given birth at around 22:50 upon receipt of an emergency scopic, Nonparty 3, a female, gave birth at around 22:50. As a result, Nonparty 3, a female, was in the state of a newborn baby’s home at KRW 1,5-minute 1, and 5-minute 2, and had already died at the time of delivery.

(9) The plaintiff 1 was discharged from the defendant hospital on December 7, 2004 due to the improvement of the state after the change of the situation, and the non-party 3 died on May 30, 2006 while being receiving treatment at the defendant hospital and the Seoul large hospital due to the damage of low-carbon boomic brain.

(10) In the case of a pregnant woman complaining of a difficulty in respiratory, the symptoms may occur not only by the pulmonary chronology, but also by other causes such as the cardiopulmonary chronology, heart disease, and heart disease, and the treatment method may vary depending on the causes such as the pulmonary chronology, heart disease, and kidne disease, and the impact on the fetus may be considered. Therefore, in order to find the cause of the pulmonary difficulty of a pregnant woman, the breath measurement of the pulmonary chronology, chronology, chronsome gas analysis, and heart chronology should be basically implemented. In addition, in order to grasp the condition of the fetus, it is necessary to measure the bron heart mor, using the pulmonary chronology

(11) Meanwhile, even in the case of a pregnant woman, it is not a stimulous radiation photographing if essential. Even if a pregnant woman has a difficulty in pulmononing a pregnant woman, the medication of urology only by clinical symptoms prior to the diagnosis by objective evidence, such as radioactive photographing photographs, may pose a risk to the fetus or the pregnant woman due to the reduction of stimule and stimule, so prudenting of urology should also be careful.

C. Examining the above facts in light of the legal principles as seen earlier, Plaintiff 1 refused to examine the causes of respiratory distress, etc. from chest X, which is a basic examiner to diagnose the causes of respiratory distress, and the fact that the condition of the mother and fetus may change if it is not possible to properly cope with the respiratory distress due to the lack of such examination seems to have been understood to a considerable extent as Plaintiff 1, a nurse with basic medical knowledge, with ten years of experience in 10 years. Furthermore, in light of the fact that Plaintiff 1 recommended breast-ray photographing, etc. through several times, the medical personnel of the Defendant hospital recommended to be hospitalized in the delivery room for the purpose of monitoring the fetus heart, etc., but Plaintiff 1 refused to comply with the above examination and practice, it appears that there was a corresponding explanation on the reasons for the above examination, etc. In addition, taking into account the above circumstances, taking into account Plaintiff 1’s past medical experience, attitude at the time of the Defendant hospital, and the contents asserted in the oral proceedings of this case, Plaintiff 1’s refusal to explain the risk of chest exposure from the Defendant hospital.

In addition, in cases where a patient refuses to receive medical treatment according to his/her own decision while recognizing the necessity of the medical care recommended by the medical personnel and the risk of refusing the medical care, the medical personnel is bound to respect the patient’s choice, and even if the patient’s refusal to provide pregnancy is likely to cause danger to the fetus, the same applies.

Meanwhile, in view of the fact that Plaintiff 1’s symptoms of the difficulty in pulmonary treatment at the time of receiving the treatment at the Defendant hospital may vary depending on the cause, and that the urology may adversely affect the fetus, it is difficult to deem that the Defendant hospital’s medical personnel did not accurately diagnose the urine or did not administer the urology, even if the urology was not accurately diagnosed or did not administer the urology.

Ultimately, it cannot be deemed that there was a violation of the duty of explanation and negligence on the medical care of the Defendant hospital, and the lower court rejected the Defendant hospital’s medical malpractice claim on the grounds of Plaintiff 1’s violation of the duty of cooperation, such as the termination of the medical care and delay in medical care. Therefore, the lower court did not err by misapprehending the legal doctrine on the violation of the duty of explanation, negligence in medical care, etc. as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 4

For reasons indicated in its holding, the court below's decision that the defendant hospital's medical personnel shall not be deemed to have been negligent in delaying the inserted clauses in the institution is acceptable, and there is no error in the misapprehension of legal principles as to medical negligence as otherwise alleged in the

3. Regarding ground of appeal No. 5

This part of the grounds of appeal by the plaintiffs is erroneous in the judgment of the court below that did not recognize the causal relationship between the negligence of the medical staff of the defendant hospital and the damage of the plaintiffs. However, as long as the judgment of the court below that did not recognize the negligence of the medical staff of the defendant hospital is justifiable, the judgment of the court below on the causal relationship cannot have any influence on the conclusion of the judgment, and this part of the

4. Conclusion

Therefore, all appeals are 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 Park Poe-young (Presiding Justice)