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The judgment below
The part against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.
Reasons
The grounds of appeal are examined.
1. When a doctor performs medical acts, such as diagnosis, treatment, etc., he/she has the duty of care to take the best measures required to prevent risks depending on the patient’s specific symptoms or circumstances, considering the characteristics of the duties to manage the life, body, and health of the person. Such duty of care shall be based on the level of medical acts performed in the clinical medical field, such as medical institutions, etc. at the time of performing the medical act. The level of medical care refers to the so-called medical awareness generally known to and known to ordinary doctors at the time of performing the medical act
(2) In light of the above legal principles, the medical practice is an area where highly specialized knowledge is required and it is extremely difficult for a general person, who is not an expert, to clarify whether a doctor has breached his/her duty of care in the course of medical practice, or whether there is causation between a breach of duty of care and the occurrence of losses. Thus, in cases where there occurs symptoms causing a result of serious injury to a patient after an operation, it is also possible to presume such symptoms to be based on medical negligence by proving indirect facts that it is difficult to see that there are other causes than medical negligence, other than medical negligence.
However, even in such a case, it is not allowed for a doctor to bear the burden of proof of negligence by estimating the causal relationship with the doctor's negligence in a remote result with circumstances where the probability of estimating the occurrence of a result from the doctor's negligence is not guaranteed.
(See Supreme Court Decision 2002Da45185 Decided October 28, 2004, and Supreme Court Decision 2005Da5867 Decided May 31, 2007, etc.). 2. The reasoning of the lower judgment and the reasons therefor are as follows.