[1] Requirements and criteria for the recognition of medical malpractice in a medical accident, and whether the same legal doctrine applies to “in the case of oriental medical doctors” (affirmative)

[2] The case affirming the judgment below to the purport that it is difficult to acknowledge a proximate causal relationship between the negligence that the defendant did not conduct a shock test and the victim's injury, in case where an oriental medical doctor defendant's medical doctor's injury caused injury, after hearing the answer that the victim did not have any abnormal reaction that had any abnormal reaction with the past bedion, without failing to conduct a shock reaction test, and the victim showed shock reaction after the treatment

[3] The requirements for criminal liability due to occupational negligence and whether the same legal principle applies to "in the case of oriental medical doctor" in the event a doctor violates the duty to explain and causes injury to a victim (affirmative)

[4] The case affirming the judgment below to the same effect on the ground that it is difficult to acknowledge a proximate causal relationship between the defendant's violation of the duty to explain and the injury of the victim in case where an oriental medical doctor defendant's medical doctor's medical doctor's injury and the victim's injury suffered an injury, such as shock reaction, after hearing the answer that the victim did not have any abnormal reaction with the past bedion, and without sufficient prior explanation as to side effects

[1] In order to recognize a medical doctor's negligence in a medical accident, it shall be examined that the doctor failed to anticipate the occurrence of the outcome and failed to avoid it even though the occurrence of the result could have been avoided. In determining the existence of negligence, the standard for the degree of common attention of an ordinary person engaged in the same work and duties should be taken into account. This should take into account the level of general medical science at the time of the accident, the medical environment and conditions at the time of the accident, the peculiarity of medical practice, etc. The same

[2] The case affirming the judgment below to the purport that, in case where an oriental medical doctor Defendant was informed of the answer that there was no abnormal reaction in the past by the victim, he did so on the part of the affected part of the affected part without any reaction test (skin te), and the victim suffered bodily injury, such as showing shock reaction immediately after the above treatment, it is difficult to see that the Defendant had a duty to conduct an algorier reaction test again against the victim who did not have any abnormal reaction in the past, and even if such duty exists, it is difficult to acknowledge a proximate causal relationship between negligence not conducting an algorier reaction test and injury of the victim, in light of all the circumstances, even if it is difficult to acknowledge a proximate causal relationship between the victim's injury and negligence that did not have any abnormal reaction test in the past.

[3] Even if a doctor breached his/her duty to explain and thereby inflicted an injury on the victim, in order to impose criminal liability due to occupational negligence, there is a proximate causal relationship between the victim's injury and the doctor's breach of his/her duty to explain or mistake in the process of obtaining consent. The same applies to herb doctor.

[4] The case affirming the judgment below to the effect that it is difficult to acknowledge a proximate causal relationship between the defendant's violation of the duty to explain and the victim's injury, in light of all the circumstances, in case where an oriental medical doctor defendant, who was an oriental medical doctor's victim, had the answer that there was no abnormal reaction with the past bedion, and had the affected part of the affected part without sufficient prior explanation as to side effects, and the victim suffered injury, such as show shock reaction immediately after the above treatment.

[1] Article 268 of the Criminal Code / [2] Articles 17 and 268 of the Criminal Code / [3] Articles 17 and 268 of the Criminal Code / [4] Articles 17 and 268 of the Criminal Code

[1] Supreme Court Decision 99Do3711 Decided December 10, 1999 (Gong2000Sang, 260) Supreme Court Decision 2001Do3292 Decided January 10, 2003 (Gong2003Sang, 656) Supreme Court Decision 2008Do3090 Decided August 11, 2008

Defendant 1 and one other

Defendant 2 and Prosecutor

Law Firm Democratic Law, Attorneys Yoon Jae-sik et al.

Seoul Eastern District Court Decision 2010No246 decided July 8, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the prosecutor

A. As to Alphar test

In order to recognize a doctor's negligence in a medical accident, the doctor's negligence should be examined if the doctor could have predicted the occurrence of the result despite the foreseeable of the occurrence of the result, and the occurrence of the result could have been avoided, despite the fact that the occurrence of the result could not be avoided. The determination of the existence of the negligence must be based on the level of common attention, who is engaged in the same duties and duties. In addition, the level of general medical science at the time of the accident, medical environment and conditions, characteristics of medical practice, etc. should be considered (see Supreme Court Decision 9Do3711, Dec. 10, 199, etc.). This legal doctrine is the same as the case of an oriental medical doctor.

원심판결 이유 및 원심이 적법하게 채택하여 조사한 증거들에 의하면, 봉침(봉침)시술 전에 실시하는 알레르기 반응검사(skin test)는 봉독액 0.05㏄ 정도를 팔뚝에 피내주사한 다음 10분 내지 15분 후에 피부반응 등을 살피는 방식으로 하고, 최초의 알레르기 반응검사에서 이상반응이 없음이 확인된 경우에는 통상 시술 시마다 알레르기 반응검사를 하지는 않는 사실, 피해자는 2007. 4. 13. ○○한방병원에서 봉독액 알레르기 반응검사를 받았으나 이상반응이 없어 봉침시술을 받은 후, 2007. 4. 16. 이후 2007. 5. 8.까지 ○○한방병원에서 약 8회에 걸쳐 시술 전 알레르기 반응검사를 받지 않은 채 봉침시술을 받았고, 2008. 12. 1.에는 ‘경추염좌’로 경추 부위에 10% 농도의 봉침시술을 받기도 하였는데, 그때마다 시술 후 별다른 이상반응이 없었던 사실, 피고인 1은 2008. 12. 13. 목디스크 치료를 위해 내원한 피해자에게 문진을 하여 피해자로부터 과거에 봉침을 맞았으나 별다른 이상반응이 없었다는 답변을 듣고 환부인 피해자의 목 부위에 1 : 8,000의 농도인 봉독액 0.1㏄를 1분 간격으로 모두 4회에 걸쳐 시술하였는데 그 투여량은 알레르기 반응검사를 할 때 통상적으로 사용하는 투여량과 같은 정도인 사실, 그런데 피해자는 봉침시술을 받고 5～10분 후 온몸이 붓고 가려우며 호흡을 제대로 할 수 없는 등 아나필락시 쇼크반응을 나타내서 응급처치를 받았고, 이후 피해자는 아주대학교병원에서 향후 3년간 벌독에 대한 면역치료가 필요하다는 진단을 받은 사실, 아나필락시 쇼크는 봉침시술에 따라 나타날 수 있는 과민반응 중 전신·즉시형 과민반응으로서 10만 명당 2～3명의 빈도로 발생하는데, 봉독액 용량과 반응관계가 성립하지 않는 경우도 많고 알레르기 반응검사에서 이상반응이 없더라도 이후 봉침시술과정에서 쇼크가 발생할 수도 있는 등 사전에 예측하는 것이 상당히 어려운 사실 등을 알 수 있다.

According to the above circumstances, it is difficult to view that Defendant 1 did not have any abnormal reaction in the previous algorier reaction test, and Defendant 1 did not have any abnormal reaction in the algorier reaction test before approximately 12 days prior to the algorier reaction test, and even if there is such obligation, considering the fact that the Defendant’s algorier’s sium administered four times during the algorier reaction test is similar to the amount generally used in the algorier reaction test, it cannot be deemed that the above Defendant administered excessive algorier’s algorisium without carrying out the algorier reaction test in the course of the algorier treatment. Moreover, even if an algorisium shock is generated regardless of the algorier’s algorithic shock, it is difficult to recognize the cumulative shock level exceeding a certain degree of algorier’s egorithic shock, or even if it does not exceed the scope of the alregenor test after the al test.

In the same purport, the court below is just in determining that Defendant 1’s occupational negligence caused shocks to the victim in the event of Abaneia, and that the injury was not caused to be exempted from the therapy. In so doing, contrary to what is alleged in the ground of appeal, the court below did not err by misapprehending the legal principles on occupational negligence, etc. in the treatment of an oriental medical doctor.

B. Regarding the duty of explanation

Even if a doctor violated the duty of explanation and caused injury to a victim, there is a proximate causal relationship between the injury of the victim and the doctor's breach of the duty of explanation or the mistake in the process of obtaining the consent in order to impose criminal liability due to negligence in the course of duty, and the same applies to herb doctor.

According to the reasoning of the judgment below, in light of the fact that the victim had been subjected to a multiple times of bedying treatment and the frequency of occurrence from bedying treatment to the state of bedyscopic shock and bedyscopic treatment, etc., even if Defendant 1 fulfilled the duty to explain to the victim prior to bedying treatment, the victim cannot be deemed to have refused bedying treatment. Thus, it is difficult to recognize a proximate causal relationship between Defendant 1’s violation of the duty to explain and the victim’s injury

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there is no violation of the duty of explanation by an oriental medical doctor, such as omission

2. Judgment on Defendant 2’s grounds of appeal

According to the records, Defendant 2 appealed the judgment of the court of first instance on the ground of only unfair sentencing as the ground of appeal, and thus, the judgment of the court below which dismissed Defendant’s appeal cannot be deemed as the ground of appeal that there was an error of misconception of facts or incomplete deliberation, etc. (see Supreme Court Decision 90Do1688, Oct. 10, 190, etc.). In this case where imprisonment for less than 10 years was sentenced, the judgment of the court of first instance that there was an

3. Conclusion

Therefore, all appeals by the prosecutor and Defendant 2 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)