[1] Whether a proximate causal relationship exists between a violation of the duty to explain and a serious result (affirmative) and the degree of a violation of the duty to explain in a case where a medical doctor claims compensation for any damage caused by a serious result on the patient due to a violation of the duty to explain

[2] Details of the doctor's duty to explain, and whether the doctor bears the duty to explain the patient's spouse's choice to undergo surgery on the sole basis of the patient's spouse's signature in the surgery application form (negative)

[1] Articles 393, 750, 751, and 763 of the Civil Act / [2] Article 750 of the Civil Act

[1] Supreme Court Decision 201Da29666 Decided April 26, 2013 (Gong2013Sang, 927) / [2] Supreme Court Decision 2005Da5867 Decided May 31, 2007 (Gong2007Ha, 949)

Plaintiff 1 and one other (Attorney Yang Jong-dae et al., Counsel for the plaintiff-appellant)

School of Annual Generation (Law Firm LLC, Attorneys Kim Jong- Line et al., Counsel for the plaintiff-appellant)

Seoul Western District Court Decision 2010Na7052 decided February 1, 2013

The part of the judgment of the court below against the defendant as to the claim for consolation money against the plaintiff 1 is reversed, and that part of the case is remanded to Seoul Western District Court Panel Division. The plaintiffs' appeal and the defendant's remaining appeal are dismissed. The costs of appeal between the plaintiff 2 and the defendant are assessed against

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding the plaintiffs' grounds of appeal

A. Inasmuch as a doctor may select and treat a method that is deemed appropriate based on the patient’s situation, the current medical level, and his/her knowledge and experience, it cannot be deemed that there is medical malpractice just on the sole ground that the outcome of the choice of a specific method is not good, unless the determination by a doctor is beyond a reasonable scope (see, e.g., Supreme Court Decision 2010Da95635, Jun. 14, 2012).

After comprehensively taking account of the adopted evidence, the lower court rejected the Plaintiffs’ assertion that there was negligence in the process of and the operation of the Defendant Hospital’s hospital’s cryptological examination, or in the choice of the operating method, on the grounds as indicated in its reasoning.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the court below's measures are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to proximate causal relation between the medical malpractice and the result, in violation of the logical rules as to the concept of solid operation, in violation of the rules of evidence as to the appraisal result, in violation of the rules of evidence as to the diagnosis result, in

B. Where a physician violates his/her duty of explanation and a serious result occurs to a patient due to surgery, etc., it is sufficient to prove that he/she lost the opportunity for choice on the part of the patient and lost the opportunity for choice due to lack of explanation or lack of explanation, and even if he/she would have not incurred any significant result if he/she received explanation, there is a proximate causal relation between the serious result and the doctor's breach of his/her duty of explanation or the process of acquiring consent. In light of the fact that the doctor's violation of his/her duty of explanation is intended to protect the patient's right of self-determination or opportunity for choice for treatment, it should be the same degree as that of the doctor's breach of duty of care required in the course of treatment (see, e.g., Supreme Court Decision 2011Da29666, Apr. 26, 2013).

The court below determined that the defendant hospital was obligated to compensate for damages caused by the non-party's infringement on the non-party's right to self-determination by failing to perform the non-party's duty of explanation on the ground that the violation of the duty of explanation is not the same as that of the non-party's violation of the duty of care required in the process of the instant surgery, and thus limited the scope of the defendant's compensation for damages against the non-party due to the non-party's violation of the duty of explanation on the ground that the non-party's right to self-determination was infringed.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, it is just and acceptable to take such measures, and there is no error in the misapprehension of legal principles as to causation between violation of the duty to explain and the result of serious violation of the duty to explain, as alleged in the grounds of appeal.

2. As to the Defendant’s ground of appeal

A. The duty to explain is an essential procedural measure required for a doctor in the course of carrying out an inception medical practice, and construing that a doctor bears the burden of proving the duty to explain, barring any special circumstance, accords with the ideal of the damage compensation system and the demand for uniform interpretation of the legal system (see, e.g., Supreme Court Decisions 2005Da5867, May 31, 2007; 2007Da41904, Aug. 19, 2010).

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below is just in holding that the defendant hospital could not recognize that it provided an explanation that it performed a superfescing surgery in the absence of an operation by performing a refescing a refescing test to the non-party for reasons stated in its reasoning, and there is no violation of the rules of evidence

B. The lower court determined that the Defendant was liable to compensate Plaintiff 1 for damages arising from the violation of the duty to explain, on the ground that the Defendant was aware that Plaintiff 1’s consent was necessary for this case’s underwater alcohol, in light of the fact that the Defendant hospital received the Nonparty’s written application for the surgery for the instant surgery against the Nonparty, not only the Nonparty’s signature, but also the Nonparty’s spouse’s signature.

However, it is difficult to accept such judgment of the court below for the following reasons.

A doctor's duty to explain is, in principle, a duty to explain the symptoms of a disease, treatment method and necessity, anticipated risks, etc. in light of the current medical level when a doctor provides a patient with an surgery or other surgery, which is likely to cause a bad result, or provides a medical act for which a death, etc. is predicted, unless there are other special circumstances, and the doctor provides a patient with an explanation on the symptoms of a disease, treatment method and necessity of treatment, etc., and the patient may choose whether to receive such medical act after sufficiently comparing the necessity or risks of the occurrence. (See Supreme Court Decision 2005Da5867, May 31, 2007, etc.). The other party to the duty to explain is the patient or his/her legal representative (see, e.g., Supreme Court Decision 2005Da5867, May 31, 2007).

Nevertheless, the court below held that the defendant hospital was liable to compensate for damages caused by the defendant's non-performance of its duty of explanation on the premise that the defendant was liable to the plaintiff 1, the spouse of the patient. In so doing, the court below erred by misapprehending the legal principles on the counter-party of the doctor's duty of explanation, failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the part against the Defendant regarding the claim for consolation money by Plaintiff 1 among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiffs’ appeal and the Defendant’s remaining appeal are dismissed, and the costs of appeal between Plaintiff 2 and the Defendant are borne by each party. It is so decided as per Disposition by the assent

Justices Jo Hee-de (Presiding Justice)