Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Gyeonggi-do Medical Center (Law Firm Gwangju, Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

Han Emergency Center Co., Ltd. (Attorney Kim Young-hwan, Counsel for defendant-appellee)

October 17, 2014

Suwon District Court Decision 2012Da44729 Decided February 13, 2014

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

A. The Defendants shall pay to each of the Plaintiff 38,780,769 won with 5% interest per annum from January 13, 2012 to November 7, 2014, and 20% interest per annum from the next day to the day of full payment.

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

2. One-half of the total costs of litigation shall be borne by the Defendants respectively.

3. The above paragraph 1 (a) may be provisionally executed.

1. Purport of claim

Defendant Gyeonggi-do Medical Center, first, shall pay to the Plaintiff 77,878,616 won in advance, and the amount calculated at the rate of 5% per annum from January 13, 2012 to the date of the instant judgment, and 20% per annum from the following day to the date of full payment.

2. Purport of appeal

A. In the judgment of the court of first instance, the part against the Plaintiff in the judgment against the Defendants shall be revoked. The Defendant Gyeonggi-do Medical Center shall pay to the Plaintiff 39,097,847 won (77,878,616 won - 38,780,769 won) and the amount calculated at the rate of 5% per annum from January 13, 2012 to the date of the instant judgment, and 20% per annum from the next day to the date of full payment, and the amount calculated at the rate of 77,878,616 won and 5% per annum from January 13, 2012 to the date of the instant judgment, and the amount calculated at the rate of 20% per annum from the next day to the date of full payment shall be paid.

(b) Defendant Gyeonggi-do Medical Center: The part of the judgment of the first instance against Defendant Gyeonggi-do Medical Center shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance, and thus, citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Liability for damages by Defendant Gyeonggi-do Medical Center;

(a) Whole violation of the Emergency Medical Service Act by the Defendant Hospital;

1) the relevant provisions

(1) Emergency medical personnel shall be able to provide emergency medical services in good faith so that emergency medical services may always be provided to emergency patients. (2) When they find that emergency medical services are requested during their duties, they shall not refuse or evade such request. Article 11 (Transfer of Emergency Patients) of the Emergency Medical Services Act. (1) Where the head of a medical institution deems it impossible to provide appropriate emergency medical services to an emergency patient due to the capacity of the relevant medical institution, he/she shall immediately transfer such patient to another medical institution capable of providing medical services. (2) The head of a medical institution shall, when he/she transfers an emergency patient pursuant to paragraph (1), provide medical instruments and manpower necessary for the safe transfer of the emergency patient, and provide records of medical treatment to the medical institution to which the patient is transferred. (3) The head of a medical institution shall be equipped with the requirements for medical treatment and emergency medical service information center under Article 4 (Procedures for Transfer of Emergency Patients and Medical Service Records) of the Enforcement Rule of the Emergency Medical Services Act, and other necessary matters concerning the supply of such medical services by other medical institutions.

2) Determination

(A) In performing medical acts such as diagnosis and treatment, a physician has a 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 the duties of managing the patient’s life, body, and health. Such duty of care is based on the level of medical practice performed in the clinical field, such as a medical institution, etc. at the time of performing the said medical act. The level of medical care refers to the so-called medical consciousness generally known to and known to ordinary doctors at the time of performing the medical act, and thus, should be grasped at a normative level in light of the medical environment, conditions, characteristics of the medical act, etc. (Supreme Court Decision 2010Da20563 Decided July 8

(B) As seen above, Article 11(2) of the Emergency Medical Service Act provides that the head of a medical institution shall provide necessary medical appliances and human resources when he/she transfers an emergency patient pursuant to Article 11(1) of the same Act and provide a medical record necessary for medical treatment to the medical institution to which the patient is transferred. According to the testimony of Non-Party 2 witness of the first instance trial, the deceased is unable to preserve his/her life or who is likely to cause serious mental or physical harm unless he/she immediately receives necessary first aid due to illness, childbirth, various accidents, accidents, and other emergencies as provided by Article 2 subparag. 1 of the Emergency Medical Service Act at the time of the transfer of the case, or a person prescribed by Ordinance of the Ministry of Health and Welfare (i.e., patients with an emergency medical treatment or persons equivalent thereto who are likely to cause serious mental or physical harm to the patient’s life or who are likely to suffer from the patient’s mental or physical harm during the process of emergency medical treatment (Article 2 subparag. 1 of the Enforcement Rule of the Emergency Medical Service Act): The patient’s life and physical harm from the patient’s consent to the patient.

(C) Meanwhile, in determining the above transfer measures, the head of the Defendant hospital, which is a medical institution, was erroneous in failing to perform the duty to provide medical instruments and human resources necessary for the safe transfer of emergency patients as stipulated under Article 11(2) of the Emergency Medical Service Act, on the other hand, inasmuch as there was no verification as to whether an emergency medical technician was on board in the transfer of the deceased, whether the special emergency medical vehicle equipped with the automatic external agents necessary for the deceased (see attached Table 16 of the Enforcement Rule of the Emergency Medical Service Act), and whether the special emergency medical vehicle equipped with the automatic external agents necessary for the deceased was transferred.

(b) A causation;

1) In compensating for damages caused by a tort, if the tortfeasor's tort was caused by competition not only the tortfeasor's tort but also the victim's act and other causes attributable to it, if the tortfeasor's tort was caused by the tortfeasor's tort, the tortfeasor is liable for compensating for the damages caused by the tort (Supreme Court Decision 99Da47129 delivered on May 16, 200).

2) In the case of an emergency medical technician boarding a special emergency medical service vehicle, the emergency medical technician is engaged in the duties of providing emergency patients with an emergency medical treatment as one of the emergency medical treatment activities to ensure the emergency patient’s airway, restoring heart consent and preventing significant aggravation of the patient’s life or symptoms (under the proviso of Article 42 of the Emergency Medical Service Act, Articles 34 and 33 attached Table 14 of the Enforcement Rule of the Emergency Medical Service Act, and the scope of duties of the emergency medical technician of February 2, 200 in the attached Table 14 of the Emergency Medical Service Act, and without specific instructions from the physician, the emergency medical technician did not perform the emergency medical treatment in the first instance court (where the heart stop occurred in the course of the first instance court’s delivery of the emergency medical service vehicle, it is clear that the head of the first instance court failed to perform the emergency medical treatment to remove the deceased’s life or significant harm caused to the deceased’s life or injury to the emergency medical technician, and thus, it is not necessary to actively respond to the emergency medical treatment in the first instance.

(c) Occurrence of liability;

Therefore, the defendant Gyeonggi-do Medical Center is responsible for compensating others for damages incurred by the head of the defendant hospital, which caused the division. As seen earlier, the head of the defendant hospital, which is a medical institution, violated the duty under Article 11(2) of the Emergency Medical Service Act, and the defendant hospital’s violation of the duty under Article 11(2) of the Emergency Medical Service Act and the death of the deceased, and thus, the defendant Gyeonggi-do Medical Center is liable for all damages suffered by the plaintiff due to

3. Liability to compensate for damage to the defendant emergency medical center;

(a) Whether an ambulance operator, etc. as prescribed by the Emergency Medical Service Act violates his duty to board an ambulance operator, etc.;

1) the relevant provisions

(3) No one, other than those falling under any of the following subparagraphs, may operate an ambulance, etc.: 1. The State or a local government; 2. A person who may have an ambulance, etc. under Article 3 of the Medical Service Act; 4. A non-profit corporation that has obtained permission for the establishment of the Minister of Health and Welfare under this Act (hereinafter referred to as "transfer business") may entrust the operation of ambulances, etc. to a non-profit medical institution under paragraph (1) 4 or a non-profit emergency medical technician who has been entrusted with the operation of such ambulances, etc. with the operation of emergency medical technicians:

2) Determination

(A) Article 44(1) of the Emergency Medical Service Act provides that the State or a local government, a medical institution under Article 3 of the Medical Service Act, and a non-profit corporation which has obtained permission for the establishment of the Minister of Health and Welfare for the purpose of transferring emergency patients other than those who are entitled to have an ambulance, etc. under other Acts and subordinate statutes shall independently entrust the operation of the ambulances, etc. to a person who has obtained permission for the operation of the ambulances, etc. or a non-profit corporation. In Article 44(2) of the same Act provides that a medical institution may entrust the operation of the ambulances, etc. to a person who has obtained permission for the operation of the ambulances, etc. or a non-profit corporation. However, in the case of a State or a local government or a person who is able to have an ambulances, etc. under other Acts and subordinate statutes, it does not have any ground to entrust the operation of the ambulances, etc., and Article 48 of the Emergency Medical Service Act provides that the head of an emergency medical institution is not a medical institution but an assistant who has jurisdiction over its location.

(B) Furthermore, according to the facts found earlier, the Defendant Emergency Medical Center, the operator of the instant ambulances, transferred the deceased, who is an emergency patient, from the Defendant Hospital, to the U.S. Hospital, did not perform such duties despite having a doctor, nurse, or emergency medical technician board the first-aid vehicle pursuant to Article 48 of the Emergency Medical Service Act.

(b) A causation;

In the above transfer process, Defendant Emergency Medical Center did not provide first aid, such as the basic cardiopulmonary resuscitation on the deceased and the guidance for regular heart gambling using automatic external engines, by failing to have the deceased board the emergency medical technician on the instant first-aid vehicle, and the above violation of the duty of care by Defendant Emergency Medical Center appears to have resulted in the death of the deceased. As such, it is reasonable to deem that there exists a proximate causal relationship between the violation of the duty of care under Article 48 of the Emergency Medical Service Center Act and the death of the deceased. As seen earlier, the proximate causal relationship between the negligence of Defendant Emergency Medical Center and the death of the deceased cannot be denied on the ground that the emergency medical technician was unable to recover the deceased from the risk of life or to perform a procedure to remove any grave mental or physical harm.

(c) Occurrence of liability;

Therefore, the defendant first-aid center is liable for all damages suffered by the plaintiff due to the above tort.

4. Review of the relationship between the Defendants’ liability for damages and the legality of a subjective conjunctive co-litigation against the Defendants

A. The relationship between the defendants' liability for damages

In the establishment of a joint tort, the common intent or common perception between the joint tortfeasor is not required, and there is an objective common relation to each act, and if the damage was caused by the pertinent joint act, the liability for damages can not be exempted (see, e.g., Supreme Court Decisions 87Meu2951, Apr. 12, 198; 2008Da22481, Jun. 26, 2008; 2010Da28390, Aug. 17, 2012). The death of the deceased is the negligence of the head of the Defendant hospital who did not perform the duty under Article 11(2) of the Emergency Medical Service Act and the negligence of the Defendant Emergency Medical Center who did not perform the duty under Article 48 of the Emergency Medical Service Act, and the negligence of the Defendants shall be deemed to have been jointly and severally related to the Defendants’ joint liability due to the death of the deceased at a series of times or place in which the deceased died from the Defendant hospital to an empty hospital.

B. The legality of subjective conjunctive co-litigation against the Defendants

Article 70(1) of the Civil Procedure Act provides for “legal compatibility” as the requirements for preliminary co-litigation as provided for in Article 70(1) means, where different evaluations of the same facts and where both claims are acknowledged as legal effectiveness of one of the two claims, the other claims cannot be accepted because the legal effect of the other claims is denied, or where either of the two claims becomes a result of affirming or denying the legal effect by either of the facts or by the selective fact-finding which constitutes the cause of the claims, and thus, denying or opposing the other claims. As such, the grounds for determination of one claim among the two claims affect the different reasons for determination of the other claims, and thus, the process of determination of each claim is necessarily mutually combined. It includes cases where the two claims cannot be legally compatible with one another, and where one of the two claims cannot be deemed to be legally incompatible with the other’s obligations under the Civil Procedure Act (see, e.g., Supreme Court Order 2007Ma515, Jun. 26, 2007).

In light of the above legal principles and returned to the case, the defendants are not legally compatible with each other in the quasi-joint and several liability relationship as joint and several obligors. Thus, the defendant Gyeonggi-do Medical Center's primary defendant's first-aid center's primary defendant cannot be deemed as a preliminary or selective co-litigation under Article 70 (1) of the Civil Procedure Act, and thus, it is inappropriate to dismiss it separately, but to regard it as an ordinary co-litigation according to the nature of the original co-litigation.

5. Limitation of the Defendants’ liability and scope of damages

A. Limitation on the Defendants’ liability

The Defendant hospital’s medical team actively recommended the deceased to provide medical treatment and to make a decision to transfer to the deceased, despite the deceased’s her mother’s her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

(b) Scope of damages;

(i) lost earnings;

The fact that the deceased's lost income was 66,269,233 causes no dispute between the parties.

2) Funeral expenses

The fact that the plaintiff paid funeral expenses of the deceased as KRW 3,00,000 is no dispute between the parties.

3) Consolation money

Considering the circumstances revealed in the arguments of this case, such as the developments leading up to the accident of this case, the deceased and the plaintiff's age, family relation, gender, occupation, and all other circumstances revealed in the records, it is reasonable to determine consolation money of KRW 15 million to the deceased and KRW 3 million to the plaintiff as consolation money.

(iv)Calculation;

A) Loss of the deceased

34,880,769 won = 19,880,769 won = Property damage (=6,269,233 won x 0.3) + 15,000,000 won)

B) Plaintiff’s damages

3,900,000 won = 900,000 won = Property damage (=3,00,000 won x 0.3) + 3,000,000 won)

C) Total amount of damages due to sole inheritance

38,780,769 won = 34,880,769 won (the loss of the deceased) + 3,900,000 won (the loss of the plaintiff)

C. Sub-decision

Therefore, the Defendants are obligated to pay to each of the Plaintiff 38,780,769 won as above, and to pay 5% interest per annum as stipulated in the Civil Act from January 13, 2012 when the Deceased died to the Plaintiff at a reasonable time until November 7, 2014, and 20% interest per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment.

6. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, it is so decided as per Disposition with the decision of the court of first instance as above.

Judges Ham Jong-gu (Presiding Judge)