2011Na1109 Damage (L)

1. Dismissal;

Since it is a minor, the legal representative of a person with parental authority or MoOO

2. GoO;

3. 장◎○

The address of the plaintiffs is not more than Daejeon-gu.

[Judgment of the court below]

Attorney Vis Soon-soo, Lee Ho-ju, Lee Dom, Lee Dong-woo

○ ○ Private Teaching Institutes

Not more than 5:00 square meters

Representative of the Gu

Attorney Cho Young-young, Counsel for the defendant-appellant

Daejeon District Court Decision 2005Gahap695 Decided January 27, 2011

April 2, 2015

May 7, 2015

1. Paragraphs (1) and (2) of the judgment of the court of first instance, including the claim of the plaintiff High○○ and High○○○, expanded by the trial court, shall be amended as follows:

가. 피고는 원고 고○○에게 414,118,762원, 원고 고○○에게 28,046,114원, 원고 장◎○에게 10,000,000원 및 각 돈에 대하여 2003. 11. 25.부터 2015. 5. 7.까지는 연 5%, 그 다음날부터 다 갚는 날까지는 연 20%의 각 비율에 의한 돈을 지급하라.

B. The plaintiffs' remaining claims are dismissed.

2. Of the total litigation costs, 3/10 of the portion arising between the Plaintiff Da○○, Da○○ and the Defendant is assessed against the Plaintiff Da○, HaOO, and the remainder is assessed against the Defendant. The part arising between the Plaintiff and the Defendant is assessed against the Defendant.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

가. 피고는 원고 고○○에게 68,711,352원, 원고 고○○에게 27,131,839원, 원고 장◎ ○에게 10,000,000원 및 각 돈에 대하여 2003. 11. 25.부터 제1심판결 선고일까지는 연 5%, 그 다음날부터 다 갚는 날까지는 연 20%의 각 비율에 의한 돈을 지급하고,

B. From November 25, 2003 to September 24, 2014, the Defendant shall pay to Plaintiff High ○○○○ KRW 508,031,476, and to Plaintiff High ○○○ KRW 9,002,578, and each of them shall be paid 5% per annum from November 25, 2003 to September 24, 2014, and 20% per annum from the next day to the day of full payment ( Plaintiff High ○○, Go ○○, extended the claim of this part of this case).

2. Purport of appeal

A. Plaintiff ○○, and high ○○

Of the judgment of the court of first instance, the part of the judgment against the plaintiff High ○○ and High ○○○ is revoked. The defendant shall pay to the plaintiff High ○○○○ for 19,769,889 won, 6,852,736 won, and 5% per annum from November 25, 2003 to the rendering of the judgment of this case, and 20% per annum from the next day to the day of full payment.

B. Defendant

Among the judgment of the first instance, the part against the defendant shall be revoked, and all plaintiffs' claims corresponding to the revoked part shall be dismissed.

1. The court's explanation on the facts of the foundation, the defendant's negligence, the occurrence of liability for damages, and the limitation thereof is identical to the corresponding part of the judgment of the court of first instance (from the second to the sixth to the sixth from the second to the second) except for the determination of the parties' allegations added in the court below, and therefore, it shall be admitted as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

A. As to the Plaintiff’s assertion of breach of duty to explain

원고 측은 피고 측 의료진이 원고 장◎○의 분만 과정에서 원고 고○○에게 뇌성마비 장애가 발생할 수 있음에 대해 원고 측에 설명하였어야 하는데 이러한 설명의무를 위반하였다고 주장한다.

In general, in a case where a doctor performs a medical act, such as surgery, which is likely to cause bad results, or where a doctor performs a medical act for which serious results, such as death, etc. are predicted, he/she is obligated to explain matters deemed reasonable in light of the medical level at the time when the patient concerned or his/her legal representative on the symptoms, treatment method and necessity of the disease, and anticipated risks of occurrence, etc. in light of the medical conditions at the time, and to allow the patient concerned or his/her legal representative to choose whether to receive the medical act after sufficiently comparing the necessity or risk of the disease. Where a doctor loses an opportunity to choose whether the patient is to receive the medical act because he/she fails to explain, he/she is liable to compensate for consolation money, etc. accordingly, but it is not related to the decision of the patient himself/herself (see Supreme Court Decision 2010Da72410, Mar. 10, 201).

이 사건의 경우 앞서 살핀 바와 같이, 원고 장◎○이 분만하기 전에 원고 고○○의 뇌성마비 결과 발생을 예견할 수 있는 원고 장이 또는 원고 고의 특이사항이나 증상이 발견된 바 없고, 원고 고○○의 신생아가사증상이 나타났을 때에는 별다른 침습적 의료행위도 취한 바 없었다. 또한 피고 측 의료진이 응급제왕절개수술을 실시하지 않은 데에 과실이 있다고 볼 수 없으므로, 자연분만에 들어가기 전에 대체적인 분만방법으로서의 제왕절개수술이나 이러한 수술에 따라 예상되는 위험성 등에 관해 설명할 의무를 부담하는 상황도 아니었다.

Therefore, in the instant case where the Defendant’s medical personnel did not take appropriate measures against newborn babies, even if the medical personnel did not explain the possibility of the occurrence of the cerebral Ma○○’s cerebral Ma○ on the part of the Plaintiff, it cannot be deemed that the medical personnel violated the duty to explain by referring it to the problem.

The above assertion by the plaintiff cannot be accepted.

B. As to the defendant's argument added at the trial court

1) The defendant asserts that, to the plaintiff ○○○, there was no sufficient symptoms to diagnose as cerebral cerebral typhism caused by the cerebral typhism accompanying the newborn baby's death or birth process.

그런데 앞서 든 증거에 당심 법원의 ○◎ 대학교 병원장에 대한 감정 보완촉탁결과의 일부 및 변론 전체의 취지를 종합하여 보면 다음 사실을 인정할 수 있다. 즉, 일반적으로 신생아가사 또는 저산소증으로 인한 허혈성 뇌손상이 뇌성마비의 원인이라고 보기 위해서는 ① 제대동맥혈 내 pH가 7.00 미만인 대사성 또는 호흡·대사 혼합성 산혈증이 있고, ② 5분 이상 아프가 점수가 0~3점으로 지속되어야 하며, ③ 경련·혼수상태 또는 저긴장도 등의 신생아 신경학적 후유증이 동반되고, 4 여러 장기의 기능장애가 있어야 한다. 그리고 원고 고의 경우, ① 제대동맥혈 내 가스 검사상 pH가 6.945였고, ② 출생 후 아프가 점수가 생후 1분에 2점, 5분에 3점이었다. ③ 또, 울음과 움직임이 없고 경련이 발생하였고, ④ 간효소치 상승, 저나트륨혈증, 유산탈수효소(LDH) 상승 등의 다기관 기능 부전이 동반되었다. 따라서 원고 고○○은 출생 직후 신생아가사상태에 있었고 이때의 저산소증으로 뇌성마비에 이르게 되었다고 볼 수밖에 없는 증상이 충분히 나타났으므로, 피고의 위 주장은 받아들일 수 없다.

2) In addition, the defendant asserts that the medical personnel on the part of the defendant carried out the two pressure ventilation phase as a process of general newborn infant resuscitation, and thereafter the body has increased and the number of hearts has increased, thus taking appropriate response measures against the newborn baby death.

In this regard, the fact that the Plaintiff’s intentional abortion was reduced up to 80 times before and after the birth of 120 to 130 times or 110 to 140 times after the birth is as seen earlier, and that the Plaintiff’s intentional body body body at the time of birth maintained a mountain extinguishing, can be acknowledged by the evidence revealed earlier. However, as above, the recovered fetus heartide waterworks still did not reach the normal fetus heartide (120 to 160 times). The Plaintiff’s medical team’s medical team’s medical team’s birth did not return to normal conditions even from November 25, 2013 when the Plaintiff’s medical team inserted the Plaintiff’s fetus at the late time from November 25, 2013, and that the Plaintiff’s fetus was unable to be seen as the birth of the Plaintiff’s body body body body’s symptoms immediately after the birth of the Plaintiff’s symptoms. In light of the Plaintiff’s symptoms before and after the birth of the Plaintiff, it is difficult to view the Plaintiff’s 2’s new medical team’s response to this case’s symptoms.

We cannot accept this part of the defendant's argument.

3) Furthermore, the Defendant asserts that the Plaintiff’s intentional fetus flurine flurine flurine flurine flurine flurine flurine flurine flurine flurine flurine flurine, and that the Defendant’s responsibility should not exceed 60% of the total damages even if the Plaintiff’s intentional fetus flurine flurine was irrelevant

그러나 을 제5호증의 기재나 제1심법원의 대학교 병원장에 대한 감정촉탁결과 및 당심 법원의 ○◎대학교 병원장에 대한 감정 보완촉탁결과의 일부만으로 앞서 본 피고 측 의료진의 과실에 관한 판단을 달리 볼 수 없다.

The defendant's above assertion is not accepted.

2. Scope of liability for damages

(a) Property damage;

1) Plaintiff High ○○

(A) lost earnings;

The facts described below (1) through (6) are either in dispute between the parties or in relation to Gap evidence 14-1 and 2, and the result of physical entrustment to the chief of the court of the trial at the court at the time of the trial at the time, and the purport of all the arguments.

(1) Personal information

women who were born on November 25, 2003 (0 years of age at the time of the accident) are women.

(2) It is deemed to be alive until November 24, 2062 as about 59 years of life expectancys.

(iii)be residing in Daejeon, which is an urban area of the residential area;

(iv) Expected income;

As sought by the Plaintiff, it is deemed that at least 60 years of age as an adult daily worker from the time when he/she reaches 19 years of age ( November 25, 202) to the time when he/she reaches 22 years of age per month ( November 24, 2063), the total amount of urban daily wages shall be calculated as 86,686 won per day in the second half of 2014.

(5) Since there remain disability and cognitive disability in terms of the residual disability and rate of loss of work ability, this shall be taken into account in determining the rate of loss of work ability in the course of being employed as an urban daily worker. The rate of loss of work ability shall be calculated by applying the Mabrid.

Therefore, the labor ability is to be lost by applying 15% to Mabrid Table two parts, brain, item III-A, occupational coefficient 5 to Mabrid Table, and the labor ability is to be lost by applying item IX-B-2, occupational coefficient 5 to Mabrid, and the labor ability is to be lost by 31%. In addition, the total labor ability loss rate in consideration of these complex disabilities shall be calculated by 41% [15+15 + 31/100, less than 10.1%).

(6) Cost of living;

The living expenses during the period of operation shall be deemed one-third of the income.

(7) At the time of the accident of calculating the amount of damages, the current price shall be calculated according to the simple interest rate calculated by deducting intermediary interest at the rate of 5/12 per month, and the period for calculating the amount of convenience shall, in principle, be calculated on a monthly basis, but less than the last month and less than KRW 1 shall be discarded. Moreover, from November 25, 2062 to November 24, 2063, the day following the end of the life expectancy for the Plaintiff High ○○○, the day after the end of the operation, the day after November 25, 2063, the day after the end of the life expectancy for the Plaintiff High ○○. Therefore, the damage equivalent to the actual income that the Defendant is liable to compensate the Plaintiff High ○○○○ is the total of KRW 81,71

[일실수입 계산표]▷ 2022. 11. 25. 2062. 11. 24. : 132,363,606원86,686원 x 22일 x 169.2829(329.3186 - 160.0357) x 41%▷ 2062. 11. 25. 2063. 11. 24. : 3,836,179원86,686원 x 22일 x 3.0173(332.3359 - 329.3186) x 2/3▷ 피고의 책임제한 비율 : 60%합계 : 81,719,871원[(132,363,606원 + 3,836,179원) x 60%]

(b) future treatment costs;

(1) Comprehensively taking account of the results of the commission of physical appraisal to the head of the knives hospital at the court of the first instance on the part of the treatment, the following facts can be acknowledged from April 25, 2015 to November 24, 2062, which was after the date of the closing of argument at the court of the first instance. The result of the commission of physical appraisal to the head of the knives hospital at the court of the first instance on the head of the knives hospital at the court of the first instance to partly contrary to this, is prior to the fixed symptoms of the Plaintiff knives of the Plaintiff knives, and thus, it is difficult to consider the same Plaintiff

(A) It is necessary to receive 37,000 won per week in one year (52 weeks) for the purpose of maintaining and improving the function of the neutic therapy for two years, taking 37,000 won per week.

(B) It is necessary to receive electric treatment three times a week in one year (52 weeks) at one time in order to receive functional training preventing the chilling and chilling of the surrounding land for the purpose of preventing functional training.

(c) need to receive working treatment three times a week every two years in one year (52 weeks) in order to strengthen the strength of the work-related area and to train daily activities.

(d) In order to promote language therapy and intelligence enhancement, language therapy need to be provided three times a week in 30,000 won per time in each year (52 weeks).

(E) Blood and urology tests (123,50 won), simple radiation photographs (92,980 won), evaluation of functions of daily living action (15,000 won), self-official film photography (55,000 won), examination of Do electric records (50,00 won), examination of Do electric records (1,400 won), examination of Do electric records (1,400 won), examination of Do electric records (16,00 won), diagnosis of Do electric records (16,00 won), neological examination (34,000 won for hospitalization fees, medication fees, assistive devices, transportation expenses, etc.) shall be conducted once every year during a life period of the future (other parts shall be deemed not to have been claimed since the Plaintiff did not present any separate calculation basis and basis).

The defendant asserts that the above details of future medical treatment fall under active rehabilitation treatment, and that only the preservation for the prevention of aggravation of symptoms can prevent double compensation for future medical treatment costs, and that such a number of times of future medical treatment is too high.

However, the above-mentioned details of future medical treatment are primarily determined to prevent the aggravation of the symptoms of Plaintiff High ○○○○ or to have labor ability to the extent recognized earlier by the above Plaintiff as an adult (it is difficult to see that the above Plaintiff’s medical treatment can increase the degree of labor ability to the extent that compensation would be an issue) and the number of times of such medical treatment cannot be deemed excessive.

The defendant's above assertion cannot be accepted.

(2) Calculation of future treatment costs

(1) As a result of the closing of argument in the current trial, each of the future treatment costs described above (1) is calculated at the present price at the time of the accident in accordance with the simple discount method that deducts intermediary interest at the rate of 5% per annum by deeming that they were spent on November 25, 2015 for the first time after 12 years from the time of the accident, and that they were spent on November 25, 2015, and that they were paid on a yearly basis, and the damage of future treatment costs that the Defendant is liable to compensate is 35,590,941 in total as listed below.

[향후치료비 계산표]▷ 향후 2년간 필요한 치료비 합계의 사고 당시 현가 : 34,886,540원▷ 운동치료비 : 9,620,000원(37,000원 x 5회 x 52주)▷ 전기치료비 : 4,368,000원(28,000원 x 3회 x 52주)▷ 작업치료비 : 6,552,000원(42,000원 x 3회 x 52주)▷ 언어치료비 : 7,800,000원(30,000원 x 5회 x 52주)► 2015. 11. 25. ~ 2017. 11. 24. : 매년 11. 25.에 한꺼번에 2회 지출34,886,540원 = 28,340,000원(9,620,000 + 4,368,000 + 6,552,000 + 7,800,000)x 1.2310(0.6250 + 0.6060)*원고 측은 현가산정을 위한 계수로 2년의 복식호프만계수 1,8614(1.8514의 오기로 보임)를적용해야 한다고 주장하나, 사고 당시인 2003. 11. 25. 기준의 현가를 산정하는 이상 원고측이 주장하는 계수를 적용하여 지연손해금을 붙이면 과잉배상이 된다.▷ 기대여명 종료일까지 필요한 진찰 및 검사비 합계의 사고 당시 현가 : 24,431,695원▷ 매년의 진찰 및 검사비1,337,880원(123,500+92,980+15,000+555,000+500,000+1,400+16,000+34,000)► 2015. 11. 25. 2062. 11. 24. : 매년 11. 25. 한꺼번에 47회 지출24,431,695원 = 1,337,880원 x 18.2615(26.8516-8.5901)*원고 측은 현가산정을 위한 계수로 48년의 복식호프만계수 24.1263을 적용해야 한다고 주장하나, 사고 당시인 2003. 11. 25. 기준의 현가를 산정하는 이상 원고 측이 주장하는 계수를 적용하여 지연손해금을 붙이면 과잉배상이 된다.

The defendant's limitation of liability: 60% total: 35,590,941 won [34,886,540 won + 24,431,695 won] x 60%

(C) nursing expenses;

(1) the recognition period and time;

The plaintiff's side argues that the plaintiff's intentional support for all daily lives is necessary, and that at least eight hours per day of ordinary adult male and female is required for the adaptation of the plaintiff.

However, in full view of the above evidence: (a) the description of evidence Nos. 10 through 12, 16, and 17 of the above evidence; (b) the fact-finding results of the fact-finding results with respect to the head of the hospital at the court of the trial, and the overall purport of the oral argument at the court of the trial, Plaintiff 10’s intelligence index No. 60, social adaptation index 76, and 47 of the same year; and (c) the fact-finding is necessary for another person’s assistance for his personal hygiene, bathing, eating, eating, booming, and clothes with clothes. Considering the present status of Plaintiff 10, 200, and the anticipated conditions by the evidence mentioned above, as well as the trend of general physical development, the Plaintiff’s assertion that the above Plaintiff is necessary within the scope of the above 1-day adult male and female’s assertion is reasonable, in view of the following factors: (a) the opening number of 8 hours per day before reaching the age of 18 to 48 years.

The Defendant asserts that this part should be reduced from the opening hours until the time of the middle school of Plaintiff High ○○○ and the head of Plaintiff High ○○, who is the parent. However, the above period and time of the opening recognized earlier refer to the continuous assistance of the parent for children exceeding the ordinary help of the parent for the child, and the continuous assistance for daily life is not sufficient to reduce the opening hours recognized above solely for the above reasons. The Defendant’s above assertion cannot be accepted.

(2) Calculation of opening expenses

(1) In accordance with the principle of single discount that deducts the Defendant from the interim interest at the time of an accident, the total of 266,807,950 won as listed below, as follows, shall be calculated at the present price at the time of the accident according to the period of recognition and time of the opening of the statement (the period of time in the convenience shall be calculated on a monthly basis, and a period of less than the last month and less than the last won shall be discarded).

A person shall be appointed.

2) Plaintiff high ○○

The fact that Plaintiff ○○○ spent KRW 30,076,858 in total out of the medical expenses for cerebrovastein expenditure of Plaintiff ○○○○○.

Therefore, damage as the treatment cost that the Defendant is liable to compensate for to Plaintiff O is 18,046,114 won (30,076,8587x60%, and less than KRW 60%). However, in comprehensive consideration of various circumstances such as the details and progress of the accident of consolation money, the degree of negligence by the Defendant, the degree of the intent of the Plaintiff, the content and degree of the intent of the Plaintiff, and the status relationship of the Plaintiffs, the damages as the treatment cost that the Defendant is liable to compensate to the Plaintiff O shall be KRW 30,000 for the Plaintiff ○, KRW 10,000 for the Plaintiff ○, and KRW 10,000 for

C. Sub-decision

Therefore, the defendant shall be liable for damages caused by negligent accidents in blin medical malpractice as mentioned above.

The sum of KRW 414,118,762 ( KRW 81,719,871 + future treatment expenses + KRW 35,590,941 + nursing expenses + KRW 266,807,950 + KRW 30,000 + KRW 28,046,114 [18,046,114 + KRW 10,000 + KRW 10,000 + KRW 10,000 + KRW 10,000 + KRW 10,000] to the Plaintiff head of ○○; the Defendant’s duty to pay damages for delay by November 25, 2003, which is one of the following day of the above accident; and the Defendant’s duty to pay damages for delay from November 25, 2003 to the day of complete payment under the Civil Act to May 25, 2015.

3. Conclusion

Therefore, each claim of the plaintiffs in this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed, without any justifiable reason. Since the judgment of the first instance court which has different conclusions is unfair, the appeal of the plaintiffs, such as the claim extended in the trial by Da○○ and Da○○○, is partially accepted, and the judgment of the first instance shall be modified as above. It is so decided as per Disposition.

The presiding judge, judge and assistant judge;

Judge Choi Jin-jin

Judges Kim Gin-han