2013da78495 Compensation (Definition)

1. A;

2. B

School Foundation Tol Private Teaching Institutes

Seoul High Court Decision 2012Na10807 Decided September 12, 2013

August 27, 2015

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. When a doctor performs medical acts such as diagnosis and treatment, 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, given the patient’s 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 medical act. The level of medical care refers to the so-called medical awareness generally known and recognized at the time of 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. (see, e.g., Supreme Court Decision 2000Da2075

In addition, since medical practice is an area requiring highly specialized knowledge and it is very difficult for a general person, not an expert, to clarify whether a doctor has breached his/her duty of care in the course of medical practice or whether there exists causation between a doctor’s breach of his/her duty of care and the occurrence of losses, it is also possible to presume that the symptoms are attributable to medical negligence by proving indirect facts that are difficult to deem that there are other causes than medical negligence in connection with the occurrence of symptoms in the process of surgery or after surgery. However, even in such a case, it is not allowed to prove the causal relationship between the doctor’s negligence and that the doctor bears the burden of proof without negligence (see, e.g., Supreme Court Decisions 2002Da45185, Oct. 28, 2004; 2005Da5867, May 31, 2007).

2. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts can be revealed. (1) Plaintiff A sent to the Defendant Hospital on September 9, 2003, which was diagnosed as a result of a radiation test conducted by an individual hospital as a result of the radiation test, after receiving a physical therapy, and the symptoms were not shown. (1) Plaintiff A sent to the Defendant Hospital on October 9, 2003.

(2) The plaintiff A showed a positive response at 60∑ 60°the left-hand, even though it was normal as a result of the non-performance test conducted on October 9, 2003 at the defendant hospital, and the left-hand side was found to have shown a positive response. As a result of the Domical fitness test, the 3rd grade (it is possible to move against the gravity, but it is impossible to move against a little resistance) and the remainder was 5rd grade (normal). As a result of the 5th grade test, it was found that there was a sensia and low symptoms that were not within the control scope of the 5th Mega pathal.

The medical personnel of the Defendant Hospital diagnosed the Plaintiff as the RoI test and performed pharmacologic treatment between the 5th and the 1000s. Meanwhile, as a result of the Damdo test conducted on October 30, 2003, the Plaintiff did not have any pathic pathic pathic pathic pathic pathic pathic pathic pathic pathics

(3) On November 5, 2003, the medical personnel of the Defendant Hospital hospitalized the Plaintiff A in order to implement the selective neutism. At the time of hospitalization, even though it was normal that the Plaintiff did not keep to the right, the left-hand side did not seem to have a positive response in 45∑. As a result of the eutical fitness test, the left-hand part of the eutical leutism was class 3 and class 5, and there was low symptoms that did not result from the eutism test.

(4) Even after the Defendant Hospital’s medical personnel implemented the selective malutism on July 2003, 11, and 7, Plaintiff A hospitalized Plaintiff A in order to perform the Plaintiff’s essential and non-radioactive radioactive raying surgery on December 4, 2003 (hereinafter “the instant surgery”). At the time of hospitalization, the Defendant hospital’s medical personnel hospitalized Plaintiff A in order to conduct the internal malutical marizationing surgery on December 4, 2003 (hereinafter “the instant surgery”). Although it was normal that the Plaintiff did not keep to the right at the time of hospitalization, the Defendant hospital did not have a positive response at 45. As a result of the malutical marology test, the instant malutical malute around the left-hand part was 3 grade and 4 grade (a situation in which it is possible to move against a normal resistance, but it is impossible to move against a normal resistance), and the remainder was 5 grade as a result of the marological test.

B. (1) On December 5, 2003, Plaintiff A complained of the instant surgery, and on December 7, 2003, Plaintiff A appealed to the medical staff of the Defendant Hospital, who was unable to walk. On December 8, 2003, Plaintiff A complained of a telegraphic pain. Afterwards, Plaintiff A discharged the Plaintiff hospital, and received outpatient treatment at the Defendant hospital, but did not go through the surgery of the head of the family and the head of the family and the head of the family and the head of the family and the head of the family and the head of the family and the head of the family.

(2) On May 28, 2004, the Plaintiff A hospitalized the Defendant Hospital to undergo the examination of the course of water supply and the examination of the course of water supply conducted on May 28, 2004, and led to class 3, 3, 4, 4, and 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, 5, and 5, 1,000,000 won

(3) On June 12, 2004, the plaintiff A was hospitalized in the defendant hospital and undergone the examination of the records of the Dominology, and led to the examination of the records of the Dominology, the 5th grade 4th grade , the 5th grade 3rd grade , the left-hand level 4 level , and the remainder 5 grade . After that, the plaintiff A was discharged on June 15, 2004 from the Dominology test conducted on November 16, 2005 and March 18, 2008, the 5th grade and the 100th grade Daalosis was found. The plaintiff A was now at the state of the 5th grade 5th grade and the 100th grade 5th grade 1,000 level her face-to-hand level her face-to-hand level her face-to-face level her face-to-face level her face-to-face level her face-to-face.

3. As to these facts, the lower court: (i) complained of the Plaintiff’s symptoms of the 5th century before receiving the instant surgery; (ii) it was difficult to see that the Plaintiff’s symptoms were damaged by the 1st century’s symptoms; (iii) it was difficult to see that the Plaintiff’s symptoms were damaged by the 1st century’s symptoms; and (iv) it was found that the Plaintiff’s symptoms were damaged by the 1st century’s symptoms before receiving the instant surgery; and (v) it was difficult to see that the Plaintiff’s symptoms were damaged by the 1st century’s symptoms during the instant surgery on December 7, 2003; and (v) it was difficult to see that the Plaintiff’s symptoms were damaged by the 1st century’s symptoms during the instant surgery on the ground that the 1st century’s symptoms were damaged by the 1st century’s symptoms during the instant surgery; and (v) it was found that the Plaintiff’s symptoms were damaged by the 1st century’s average surgery during the instant surgery.

4. However, considering the reasoning of the lower judgment in light of the aforementioned legal principles and factual relations, it is difficult to accept the lower court’s judgment for the following reasons.

A. The plaintiff A shows symptoms to the left-hand part of the 1stmacy test conducted on November 5, 2003 before the instant surgery. The result of the 2ndmacy test conducted on December 4, 2003 shows symptoms to the degree of weakening 1stmacy (class 3) and to the left-hand part of the satise low satise (class 4), and complaining of symptoms to the degree of weak satise and low satise. The symptoms to the radioactive and low satise are the typical symptoms of the 1stmacy, as well as the 1stmacy of the 1stmamacy test conducted on November 5, 200. In general, since the 1stmamacy test conducted on the 2ndmathy part of the instant surgery, it is difficult to readily conclude that the 1stmamacy surgery of this case was damaged by the 1stmamacy test result of the instant surgery before the 3th of the instant surgery.

B. Also, the medical records of this case presented the opinion that: (a) The Machina Hospital E affiliated with the Ethical college of Ethomian University presented the opinion that it is probable that the Plaintiff’s Machina damage was caused to the Plaintiff’s Machina during the instant surgery; and (b) where the Machina has already damaged the Plaintiff’s Machina during the instant surgery, the Machina may deteriorate the Machina function by normal scopic manipulation in the instant surgery; and (b) where the Machina has already been already divided before the instant surgery, even if the Machina was removed through the instant surgery, the symptoms identical to the previous surgery can remain even if the Machina had been removed, and it is not sufficient to conclude that the Machina was damaged by the Plaintiff’s Machina’s negligence in the instant surgery, or that there was no possibility of any other risk inherent in the instant surgery or any other surgery to prevent the Plaintiff’s Machina from being negligent in the instant surgery.

D. Furthermore, in light of the above circumstances, it is difficult to presume the occurrence of the result due to the negligence of the medical personnel of the Defendant hospital in the process of the instant surgery, taking account of the remaining circumstances in the judgment of the court below, such as Plaintiff A complained of the difficulty of walking immediately after the instant surgery, and there is an appeal against the telecommunication system.

E. Ultimately, the circumstances acknowledged by the lower court are not sufficient to deem that there is sufficient probability to presume that the occurrence of the result of damage to Plaintiff A due to the negligence of the medical personnel of the Defendant hospital in the course of the instant surgery.

5. Nevertheless, the lower court acknowledged the Defendant’s liability for damages by estimating the negligence and causal relationship of the Defendant Hospital’s medical professionals on the sole basis of the circumstances in which the aforementioned probability is not guaranteed.

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to the presumption of negligence and causation in a medical accident, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

6. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Go Young-young