[1] In a case where symptoms which caused serious results to a patient during the surgery occur, whether the symptoms can be presumed to have been presumed to have been based on medical negligence by proving indirect facts that are difficult to deem that there are other causes than medical negligence with respect to the occurrence of symptoms (affirmative) and the limitation thereof

[2] Where a doctor's violation of his/her duty to explain constitutes a cause for payment of consolation money

[1] Article 750 of the Civil Act, Article 202 of the Civil Procedure Act / [2] Articles 750 and 751 of the Civil Act

[1] Supreme Court Decision 2010Da96010, 66027 Decided June 27, 2013 Supreme Court Decision 2013Da27442 Decided February 26, 2015 (Gong2015Sang, 532) / [2] Supreme Court Decision 2007Da25971 Decided May 27, 2010 (Gong2010Ha, 1212)

Plaintiff (Counterclaim Defendant) (Law Firm each other, Attorneys Seo Jong-soo et al., Counsel for the plaintiff-appellant)

School of Annual Generation of a School Foundation (Attorney Lee Jong-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 201Na66476, 66483 decided September 24, 2015

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the main claim and counterclaim is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff (Counterclaim Defendant)’s appeal is dismissed.

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

1. As to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”)’s ground of appeal

A. As to the causal relationship between the negligence in an operation and the disability

(1) Medical practice is an area requiring highly specialized knowledge, and it is very difficult for a general person, not an expert, to clarify whether he/she has breached his/her duty of care in the course of medical practice, or whether there exists causation between the violation of his/her duty of care and the occurrence of damage. Therefore, it is also possible to presume that the symptoms occur to a patient during the surgery by proving indirect facts that it is difficult to deem any other reason than the medical malpractice in the event there is any other reason for the occurrence of the symptoms. However, even in such a case, it is not permissible to assume the burden of proof without negligence to a doctor by estimatinging the causal relationship with a doctor’s negligence on the grounds that the probability of presumption of the outcome is not guaranteed by a doctor’s negligence (see, e.g., Supreme Court Decision 2013Da27442, Feb. 26, 2015).

(2) Based on the facts stated in its reasoning, the lower court determined that: (a) the Plaintiff’s 1stmacy surgery was carried out solely on the right-hand part of the instant surgery; (b) the Plaintiff’s 1stmacy surgery was likely to cause damage to the 1stmacy of the instant surgery; (c) the Plaintiff’s 1stmacy surgery was carried out in a relatively less likely to cause damage to the 1stmacy of the instant surgery; and (d) the Plaintiff’s 1stmacy surgery was also based on the fact that the 1stmacy of the instant surgery was not carried out, but rather on the left-hand part of the instant 1stmacy surgery; and (d) the Plaintiff’s 1stmacy surgery was also based on the fact that the 1stmacy surgery was carried out in a relatively less likely to cause damage to the 1stmacy of the instant surgery; and (e) the Plaintiff’s 1stmacy surgery, which was not on the left-hand part of the first surgery.

(3) However, it is difficult to accept the judgment of the court below that presumed the medical malpractice and causation in the operation of the Defendant Hospital solely on the above grounds.

(A) The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① After having suffered a traffic accident on May 7, 2004, the Plaintiff had shown the symptoms of the escape from the 5th left-hand-hand-hand-hand side, and had received an ex post-closion and conical signboard removal from the Defendant Hospital on Nov. 8, 2004. In order to observe the progress, the Plaintiff continued medical treatment at the Defendant Hospital by the end of August 2006. However, there was no error in the outcome of physical ability, sense of sense, and neological examination, etc., the Plaintiff applied to the Defendant Hospital’s emergency room on Apr. 10, 207.

② As a result of the system examination and neological examination conducted by the medical staff of Defendant Hospital at the time, it was confirmed that the sense of the part under the right side, surrounding the port text, and the right side 4 times. Although the view of the left side was normal, the exercise of the right side was in the following 0 steps, slurgical slurg, and slurgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical surgical s.

③ On April 11, 2007, from around 17:45 to around 19:24, the medical personnel at Defendant Hospital performed the 3rd to the right side of the 3rd to the 19:3rd to the 3rd to the 3rd to the 4rd to the 3rd to the 3rd to the 4rd to the 3rd to the 4rd to the 4rd to the 3rd to the 4rd to the 4rd to the 5rd to the 5rd to the 5rd to the 5rd to the 1st to the 1st to the 5rd to the 1st to the 1st to the 5rd to the 5rd to the 5th to the 5rd to the 5th to the 5th to the 5th to the 19:2

④ After the first operation, the Plaintiff showed symptoms to the lower half of the body while there was a brush that is not newly left-hand, and the physical nature of the Plaintiff at the time was measured as follows: high level 1 to 2; stoke and stoke; 3; stoke and stoke of stoke; stoke and stoke of stoke; stoke and stoke of stoke; stoke and stoke of stoke; stoke and stoke of stoke; s to the left-hand stoke of stoke; stoke and stoke of stoke; s to the left-hand stoke of stoke were measured as one step; and s to the Plaintiff.

⑤ On April 11, 2007, at around 23:04, in order to verify the causes of the foregoing, the medical personnel of the Defendant Hospital re-examineed the RI test. At around 23:50, at around 23:50, the first operation department was opened to verify the pressure and damage of the first operation department (hereinafter “the second operation”), and the first operation department was opened to find out approximately 1.5 cm on the part of the operation, and the first operation department was found to have a blood transfusion of approximately 1.5 cm on the part of the operation, and the latter was suralized on the part of the right side. Accordingly, the medical personnel of the Defendant Hospital removed the above blood, surded the re-surine, combined with the re-surd one. Furthermore, even though the pressure and damage to the left side was confirmed by expanding the first operation department after the restriction on the first operation, there was no possibility of the second operation and its possibility was found to have been found to have been in mind.

(6) From April 12, 2007, the Plaintiff began to appeal for two pains each day thereafter, and thereafter, the two pains continued almost every day. On April 22, 2007, the medical personnel of the Defendant Hospital: (a) on April 22, 2007, 1/2 of 2007, her brain boomed boomed around the 2nd surgery; (b) on the part of the 2nd surgery, her pressured scam was carried out; (c) but the cambling was not cambling; and (d) thereafter, the Plaintiff’s two pains continued. Accordingly, on May 16, 2007, the medical personnel of the Defendant Hospital determined that the Plaintiff’s two pains were caused by brain water leakage, and (d) on May 16, 2007, performed the operation by combining the Plaintiff with “31st surgery” (hereinafter “the 3nd operation”).

7) The Plaintiff complained of the decline in the loss and sense of the current fluoral force, and the fluoral disorder caused by the urology test conducted by the court of first instance on July 16, 2009, which was conducted by the commission of physical appraisal, was under 20% of the normal fluoral disease, and abandonment was under 0% of the normal fluoral disease, and the fluoral disease was nearly 0% of the original fluoral disease was confirmed as a result of the examination conducted on July 21, 2009. As a result of the examination on the fluoral disease conducted on July 21, 2009, there was a fluoral disorder caused by the urology and the reduction of eluoral pressure.

④ Meanwhile, according to the fact-finding inquiry and reply by the court below on the head of Seoul Asan Hospital, it is presumed that the degree of damage was insignificant due to the damage to the extent of the expansion hole in the first operation, and that there was no occurrence of the deterioration of the function of corrosion, urine, and urology during the first operation, and that there was no occurrence of the deterioration of the function of urine, urine, and urine. In general, due to the Plaintiff’s opinion based on the heavy urine, urine, and urine urine urine 4 surgery on the terminal boundary rather than the heavy urine urine boundary, it is presumed that the escape certificate operation on the urine 4th in the first operation was an operation on the terminal urine, which was received by the Plaintiff, and thus, it is presumed that it was an operation on the terminal

9) In addition, according to the medical record appraisal results with respect to the head of the Gangseo-dong University Hospital Hospital, the Plaintiff shows at all different progress from the ordinary disc surgery, and it is presumed that the medical explanation on marina expenses and upper neutal marina expenses cannot be given to the left-hand side, and it is highly likely that the occurrence of marina expenses would be caused by elimculation in the upper region and the center part, rather than the neutism problem. Furthermore, according to the inquiry reply to the head of the Gangseo-dong University Hospital, it is difficult to explain the theoretical aspect of the Plaintiff’s surgery because the operation part of the Plaintiff was in part of the opposite part of the surgery, and it is possible to explain the apparatus used to remove the neute in the operation, and if it was impossible for a experienced doctor to directly open the mamina, it is possible to explain the occurrence of marina expenses in the case of the Plaintiff, but it is possible to eliminate the occurrence of elimculation in the case of the Plaintiff, and it is possible to eliminate the occurrence of elimculation during the surgery.

(B) Examining these circumstances in light of the aforementioned legal principles, when the Plaintiff’s physical examination conducted on July 16, 2009 by physical examination of the first instance court, the Plaintiff’s physical examination was conducted at zero percent, and the Plaintiff’s physical strength was nearly close to the right-hand side of the Maspath 4th Maspath Maspath Maspath Maspath Maspath Maspath Maspath Maspath 4th Maspath Maspath Maspath Maspath math math math mas, but the Plaintiff’s physical strength and math math 4th maspath math maspath math maspath maspath maspath math maspath maspath math maspath path math path maspath path path 1st math path path math path path path ma.

In addition, it is difficult to view that there is no evidence to view that there was a large amount of cryposis, and that there was a large number of cryposis damage and that there was no damage to crypology, and that there was no physical damage to the external strength damaged by the cryposis, and that there was no physical damage to the external strength of the cryposis during the 2nd surgery, even though approximately 1.5C c of the cryposis was discovered during the 2nd surgery, the location of the discovered cryposis was the part of the operation, and that there was a large amount of cryposis, and that there was no evidence to view that there was a large quantity of cryposis, thereby pressureing the Plaintiff’s Company, and that there was a crypology in a position different from the

In addition, in the fact-finding inquiry reply to the head of the Seoul Asan Hospital, the court below's fact-finding inquiry is based on the heavy urology path, which is low in the quantity of paralysis and urology, and the operation of the escape symptoms of the March - 4 of that of the 3th century, which the plaintiff received, is presumed to have been detrimental to the relevant surgery in the case of the plaintiff, since the operation of the 3th century boundary was performed on the terminal beginning boundary, it is presumed that it was unrelated to the surgery performed in the case of the plaintiff. As a result of the medical record appraisal entrustment to the head of the Gangwon-dong National University Hospital, the medical record appraisal of the court below is presumed to have a high possibility of being caused by the dystrophism in the upper region, and the central part, and it is difficult to conclude that there

Therefore, it is difficult to see that the circumstances indicated by the lower court were the medical professionals of the Defendant Hospital as circumstances with probability to presume the existence of the causal link with each of the instant surgery and the instant disability solely on the ground that the medical professionals of the Defendant Hospital neglected to perform their duty of care, such as wrong manipulation of the operation devices at the time of the first surgery, thereby harming the Maspathic gun, or causing damage to the Maspathic gun, or due to this, it cannot be presumed that the Plaintiff caused the instant disability due to the Maspathic group.

B. Regarding violation of duty of explanation

(1) A doctor's duty to explain patients is not limited to an operation, but also at all stages of medical treatment such as examination, diagnosis, and treatment. However, a doctor's duty to explain a violation of such duty to explain a doctor's duty to pay consolation money, etc. However, in a case where a doctor has performed an operation without properly explaining the patient and an unexpected result has occurred to the patient, if the patient had explained the symptoms, treatment or diagnosis method and necessity of the disease before the act and the anticipated risk of the occurrence, etc., and if the patient would have avoided the patient from exercising his/her right to self-determination, he/she would have been able to exercise his/her right to self-determination so that the patient would suffer from a serious result due to his/her loss of the opportunity. In this sense, the duty to explain is not for all medical procedures, but for all medical procedures such as surgery, etc., and for medical treatment subsequent to this, it is reasonable to view that the patient's duty to explain is not subject to the duty of self-determination 207 or 207.

(2) The lower court determined that the Defendant hospital’s medical personnel violated the duty to explain in performing the first surgery on the ground that it was insufficient to acknowledge the Plaintiff that the medical personnel of the Defendant hospital could have discovered a new neological disorder, such as Materna as a result of the first surgery, and that there was no evidence to acknowledge any other evidence to acknowledge it.

However, in light of the above legal principles, it is difficult to see that the disability of the Plaintiff, as seen earlier, was caused by the primary surgery, and it is difficult to conclude that there was a duty to explain that there may occur Maternia as a result of the primary surgery to the medical personnel of the Defendant hospital, because it is difficult to conclude that there was no other reason to cause the Plaintiff, such as Materne, in addition to the medical malpractice of the Defendant hospital.

C. Sub-decision

Therefore, the Plaintiff’s claim of the principal lawsuit seeking damages on the ground of the medical malpractice and violation of the duty to explain in each of the instant surgery by the Defendant Hospital cannot be accepted, and the Defendant’s counterclaim claim seeking the payment of medical expenses incurred from each of the instant surgery cannot be rejected on the ground of the medical malpractice, etc. by the Defendant Hospital’s medical personnel.

Nevertheless, the court below presumed the causal relationship between the negligence in operation and the disability of the medical personnel of the defendant hospital and recognized the violation of the duty to explain, on the premise of the presumption, and rejected part of the defendant's counterclaim. The court below erred by misapprehending the legal principles on the presumption of negligence and causal relationship and the duty to explain, which affected the conclusion of the judgment, by failing to exhaust all necessary deliberation. The ground of appeal pointing this out has merit.

2. Plaintiff’s ground of appeal

The Plaintiff’s assertion in the grounds of appeal is that limiting liability to 40% in determining the scope of Defendant’s liability for damages is considerably unreasonable in light of the principle of equity in light of the principle of equity, and that the Plaintiff’s negligence in the Defendant Hospital incurred the instant disability, and thus, the Plaintiff does not bear part of medical expenses incurred from each operation

However, as seen earlier, insofar as the part of the judgment of the court below that held the Defendant liable for damages under the premise that the Defendant is liable for damages is reversed, the first Plaintiff’s ground of appeal on a different premise is without merit.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant regarding the principal lawsuit and counterclaim shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The plaintiff's appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating

Justices Park Sang-ok (Presiding Justice)