2012 Gohap64678 Compensation (as stated)

1. Lighting-○;

2. Kim○-○

3. Kim Jong-chul

[Judgment of the court below]

Attorney Ko Hy-sung

1. Korea;

The Minister of Justice for the legal representative

Litigation performers last*, static*, Kim, Kim**

2. 학교법인 ■■■■

Representative Director lele**

3. Kim Jong-tae

Defendant 2, 3 Attorney Maximum Intervention

November 6, 2013

December 4, 2013

1. Defendant Republic of Korea pays to Plaintiff ○○○○, an amount calculated by applying each ratio of KRW 5,857, 142 per annum from April 11, 2012 to December 4, 2013, and KRW 20 per annum from the following day to the date of full payment.

2. 원고들의 피고 대한민국에 대한 나머지 청구 및 피고 학교법인 ■■■■, 김소에 대한 청구를 각 기각한다 .

3. 소송비용 중 원고들과 피고 대한민국 사이에 생긴 부분의 19 / 20는 원고들이, 나머지는 피고 대한민국이 각 부담하고, 원고들과 피고 학교법인 ■■■■, 김 사이에 생긴 부분은 원고들이 부담한다 .

4. Paragraph 1 can be provisionally executed.

Defendants are jointly and severally (1) to Plaintiff ○○○, Plaintiff 435, 219, 895, and 405,714, and 285, among them

For 3,00,00 won from April 11, 2012, from April 12, 201 to April 201, 2012, 26, 505,610 won

From February 24, 2012, (2) Plaintiff Kim-○, and Kim Jong-tae, respectively, 267, 142,857 won and any of them

From April 11, 2012 to the service date of a copy of each complaint of this case, 5% per annum, and full payment from the following day shall be made.

By the day, 20% interest shall be paid at each rate of 20% per annum.

1. Basic facts

A. The relationship between the parties

1) He was detained by the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on April 14, 201, and the Defendant’s Seoul detention center affiliated with the Republic of Korea was released from the custody on February 21, 2012, and died on April 11, 2012. (2) Plaintiff Cho Jong-○ was the wife of the Deceased, Plaintiff Kim○, and Kim Jong-ri were the offspring’s children.

B. On June 22, 2011, the Deceased filed an application for dental treatment with the Seoul Detention Center on the part of the Deceased. On July 4, 2011, the Deceased complained of symptoms that seem to have been tested in the field of vision and that it was difficult to view the right eye at the front of the tour, and the dental officer in Seoul-gu recommended the application for a clinical examination. The director of the Seoul Detention Center medical division to apply for a clinical examination.

11. As a result of a prisoner’s regular health examination, the deceased was confirmed to have lost the eyesight of his/her right eye, and the deceased was permitted to receive medical treatment in an external medical facility.

2 ) 망인은 2011. 7. 12. 안양샘병원에서 외부진료를 받은 결과 열공성 우안 망막박 리증으로 즉시 수술적 치료가 필요하다는 진단을 받고, 2011. 7. 13. 피고 학교법인 그 ■■■ ( 이하 ' 피고 법인 ' 이라 한다 ) 이 운영하는 ▦▦대학교 ▦▦병원 ( 이하 ' 피고 병원 ' 이라 한다 ) 안과 외래에 내원하여 담당의사인 피고 김소로부터 진료를 받은 후 입원하여 2011. 7. 14. 유리체 절제술, 공막돌륭술 및 유리체강내 가스주입술 ( 이하 ' 이 사건 수술 ' 이라 한다 ) 을 받았다 .

3) On July 15, 201, the Deceased discharged, and was detained in the ward of the Seoul detention center medical room, and was regularly conducted the test of eyesight, internal pressure test, and mountain dynamic test by December 12, 201. The Deceased was expressed that the progress of surgery was good and the network condition was normal.

C. As a result of the deceased’s health examination, the deceased was at the Seoul detention center on April 14, 201, and the health examination conducted on April 14, 201 (hereinafter “the first medical examination”) conducted on the medical examination conducted on April 14, 201 (hereinafter “the first medical examination”), and as a result, the value of AST, ALT, y-GP’s average 4,31,79 square meters (AST 8- 38, ALT 5- 43, y- 0 to 63), and the medical officer of the Seoul detention center recommended the deceased to undergo a liver function and an open blood examination for two months after the date of the examination.

2) As a result of the Deceased’s regular examination on July 8, 201 (hereinafter “the second examination”) conducted on a prisoner’s regular examination on July 8, 201 (hereinafter “the Second examination”), each of the AST, ALT, y, GTPP’s numerical value is over 61,51,93, the examination institution is suspected of high blood pressure, urology, B infection, and liver disease, and the examination institution expresses its opinion to be able to view the second examination because it was in the inter-functional test.

3) On July 26, 2011, the Deceased received the second examination of urology, high blood pressure, hepatitis B, liver infection, and liver function (hereinafter “third examination”). As a result of a close examination of liver functions, the numerical value of AST, ALT, y - GTPP was measured higher than the normal values of 80,67, and 119, and was classified as a gene disease. The medical officer of the Seoul detention center notified the Deceased on August 12, 201 that he/she applied for a post-functional tracking examination after three months.

4) On August 24, 2011, the Deceased had undergone a blood test on August 24, 201 (hereinafter referred to as "fourth examination"), and the value of AST, ALT, y - GTPP 95, 70, 156, and 1,2, and 156 at the time of the third examination. 5) Meanwhile, on July 13, 2011, the Deceased was subject to a prior examination, such as blood test, infection test, and chest radiation test at the Defendant Hospital. As a result of the blood test, the value of AST, ALT, ALT, and ALP 284 normal water (aL 9-251) was measured higher than that of AP 63,50,284 normal water (aLP 9-251).

D. The Deceased’s symptoms progress 1) On January 30, 2012 and February 4, 2012 of the same year, the Deceased’s card on the right side of the deceased, the blood transfusion, the above, and the franchising symptoms after speaking in around February 8 of the same year, the franchising card on February 10 of the same year, and the franchis card on February 15 of the same year.

On February 17, 2012, the deceased constantly complained of the dystroph and hystrophism, and was administered by a medical officer. On February 17, 2012, the medical officer in charge of the Seoul detention center was suspected of the dystrophism and transferred the deceased to the Annyang Hospital. As a result of the blood and urgical examination conducted by the above hospital, the hystrophism increased. As a result of the dystrophization of the dystrophism, the deceased was found to be under the hystrophosis, which is difficult to expect the effect due to cystrophical medical treatment or hystrophism treatment.

In the case of less than liver cancer, it is difficult to diagnose, the progress rate is relatively low, and even if treatment is properly conducted, the survival rate of 3 years is about 40-50%, about 10-20%, and the survival rate of 5 years is not good.

In the case of the Deceased, it is presumed that the liver cancer occurred between July 201 and the beginning of July 2012. In the case where the Deceased was discovered at the time of around July 13, 201 when the liver function test was conducted in an appropriate internal and external manner, the Deceased’s life may be extended for about 2-2-2-5 years without the distance transfer, and for about 6-month period if the distance transfer had already occurred.

3) On February 21, 2012, the Deceased released from a detention house upon the determination of a detention house administrative branch on the ground that the treatment is deemed necessary due to liveram on February 21, 2012, and received hospitalized treatment at the National Cancer Center, Annyang Hospital, and Annyang Hospital.

11. Dead.

[Ground of recognition] In the absence of dispute, Gap's evidence Nos. 1 through 3, 5, 7 through 13, 22 through 24, 27, 29, 30, Eul's evidence Nos. 1, 2, Eul's evidence Nos. 1, 2, and Eul's evidence Nos. 1 through 3 (including each number), the result of the court's entrustment of the examination of medical records to the Director of the Innyang Hospital of this Court, the result of the inquiry of the fact to the Director of the Innyang Hospital of this Court,

2. The plaintiffs' assertion

A. Defendant 1) From June 21, 2011, the Deceased complained of dynamics and inconveniences about snow, and requested safe and medical care, the Seoul detention center allowed outside medical care after about twenty (20) days from that disregarding it, and became subject to the instant surgery due to the deceased’s delayed medical care. The deceased was unable to properly set off his/her view due to the delay of medical care, and was thereby suffered permanent disorder in the eyesight.

2) In addition, the Seoul detention center was not only affected by normal water and continuously increased as a result of the deceased’s health examination, and thus, the Seoul detention center did not neglect the function of the deceased without any measures and did not provide medical treatment. As a result, the deceased lost an opportunity to receive appropriate treatment by discovering symptoms early, and eventually died.

B. Defendant Kim Jong-ok was suspected of having been suffering from a disease due to the result of the pre-examination conducted against the deceased for the instant surgery. Therefore, he neglected to explain the results of the examination to the deceased and to request a cooperation with the other department, which led the deceased to the loss of an opportunity for the deceased to receive appropriate treatment by discovering symptoms early, and eventually died. 2) Furthermore, the said Defendants failed to perform their obligations under the instant medical contract, and thus, should bear the instant surgery and its treatment costs borne by the deceased and the plaintiffs.

3. Determination on the claim against Defendant Republic of Korea

A. Whether the liability for damages occurred

1) Determination on the assertion of delay in dental treatment

On June 22, 2011, the deceased filed an application for safe and medical treatment due to abnormal signs in snow, and July of the same year.

4. On July 11, 201, after obtaining permission for transfer of a hospital from the head of the Seoul detention center and the head of the outside hospital, he/she claimed symptoms that the tour medical care center of the Seoul detention center did not seem to have the right eye, and that he/she received the instant surgery from the Defendant Hospital on July 14, 201, after obtaining the permission for transfer of the outside hospital, and on July 14, 201, the Defendant Hospital received the instant surgery from the Defendant Hospital on July 14, 201, according to the following: (a) Eul successfully performed the instant surgery; (b) the instant surgery was conducted on a successful basis; and (c) the state of the part of the process for progress observation and the fact that he/she was well aware of the fact that he/she was well aware of the fact that the instant surgery was conducted on July 2, 201.

It is difficult to recognize that the deceased has a permanent disability due to the proof of the plaintiffs' whole, and there is no other evidence to recognize it.

Furthermore, according to the provisions of the Administration and Treatment of Correctional Institution Inmates Act and the Enforcement Decree thereof, a prisoner whose health condition is not good may receive consultation from a medical officer, etc. by requesting medical treatment with his/her medical officer, etc., and the transfer of an external hospital is determined by the medical officer in cases where diagnosis equipment in the correctional institution is insufficient, where an emergency patient occurs, and where a serious disease occurs, etc., the director of the medical office finally determines whether to grant permission. In addition, considering the series of procedures required under the provision, etc., it is difficult to view that the Seoul detention center delayed the transfer of an external hospital after the date on which the deceased requested safe medical treatment, and there is no evidence to prove otherwise that the Seoul detention center violated the obligation to provide appropriate medical treatment to the deceased.

The plaintiffs' assertion in this part is without merit.

2) In general, a prison’s medical officer has the duty to take the best measures required to prevent any danger depending on the patient’s specific symptoms or circumstances in light of the patient’s duty to manage the patient’s life, body, and health when performing medical acts, such as diagnosis, treatment, etc. against the inmate in the prison (see Supreme Court Decision 2004Da65121, Mar. 10, 2005). Since the inmate confined in the confinement facility such as a prison cannot go from the facility by his/her own will and is deprived of his/her freedom of conduct, the manager of the facility is obliged to ensure the safety of the inmate’s life and body. The content and degree of the duty to ensure the safety of the inmate’s life and body is the duty to ensure the victim’s physical and mental condition, physical and human status of the facility, time and location of the facility, etc., and to specifically determine the case in accordance with the case (see Supreme Court Decision 208Da75768, Jan. 28, 2010).

6. As to this case’s health care team, it is important to find the deceased’s early detection because there were no clinical symptoms until oral maturity. 2) The Seoul detention center’s health examination conducted with respect to the deceased who is a newly confined person pursuant to the provisions of the law at a higher level than normal values. 3 months thereafter, the above-mentioned numerical value was somewhat increased, and 3rd and fourth additional medical examinations were required to undergo re-examination, and it seems that there were no particular attention to the disease of the deceased. 3rd and fourth medical care center’s health examination conducted by the Seoul detention center without considering the following factors: (i) the deceased’s health condition was less than 4 months before the death; and (ii) the Seoul detention center’s health examination conducted without considering the patient’s disease history or physical examination; and (iii) the patient’s health care center’s health condition was less than 4 months; and (iv) the Seoul detention center’s health examination conducted without any further examination.

C) Accordingly, Defendant Republic of Korea is liable for compensating the Deceased and the Plaintiffs for damages suffered by the Deceased and the Plaintiffs by finding liver cancer early at the time. However, Defendant Republic of Korea is liable for lost income and funeral expenses. Defendant Republic of Korea is liable for compensating for damages caused by the Deceased and the Plaintiffs

Since causation cannot be acknowledged between the negligence in the Seoul detention center under the defendant's jurisdiction and the death of the deceased, the part on the claim for damages equivalent to the lost income and funeral expenses of the deceased under such premise is without merit without further review.

2) As the deceased and the plaintiffs, it is recognized that the deceased were suffering from a lot of mental distress on the ground that the deceased was deprived of an opportunity to receive appropriate liver cancer treatment by finding liver cancer early due to the negligence in the Seoul detention center. The defendant Republic of Korea has the obligation to pay the plaintiffs the above mental damage with money.

B) Comprehensively taking into account the details and developments of the negligence in the Seoul Detention House under the Defendant’s Republic of Korea’s negligence, the deceased’s disease status, the deceased’s age and the Plaintiffs’ status, the degree of criticism against the Defendant’s Republic of Korea, and all other circumstances revealed in the argument in the instant case, the amount of damages shall be set at KRW 10,00,000,000, Plaintiff Cho Jong-○, Kim ○, and Kim Jong-sung as KRW 3,00,000,000, respectively. The consolation money of the deceased is set at KRW 4,285,714 ( = 10,00,000, KRW 3/7,000, KRW 00, KRW 2,857, KRW 1427, KRW 1420, KRW 100, KRW 200, KRW 200, KRW 7000, = 200, KRW 710, respectively.).

C. Sub-decision

Defendant Republic of Korea shall dispute over the existence and scope of the obligation of Defendant Republic of Korea from April 11, 2012, the date of death of the Deceased, with respect to the Plaintiff Cho○○○, KRW 9,285,714 ( = solatium 5,00, KRW 00 in inheritance + KRW 4,285, KRW 714 in inheritance + KRW 5,857, and KRW 142 in inheritance), respectively ( = solatium 3,00,000, KRW 00 in inheritance + KRW 2,857, and KRW 142 in inheritance) and each of the said money.

4. By up to the day, 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment shall be liable to pay damages for delay at each rate.

4. Determination as to the claim against the defendant corporation, Kim Jong-tae

1) In the event that a physician finds any symptoms suspected of a disease in the course of diagnosing and treating a patient, he/she has a duty of care to explain and recommend the patient to be subject to measures or inspection to reveal whether the disease occurred, degree, etc., unless there are any special circumstances (see Supreme Court Decision 2008Da60162, Jan. 15, 2009, etc.).

In the pre-examination for the instant surgery, the fact that the numerical value of AST, ALT, yLT and y-GTPP, which reflects the chronological value of a cell, is somewhat higher than the normal values, is as seen earlier. However, according to the facts acknowledged earlier, the deceased was aware of the fact that the above numerical value is in normal values as a result of the first, second, and third examination conducted before the above blood examination, and it can be acknowledged that the disease of the deceased was presumed to have occurred between around July 201 and the beginning of the first, 2012. Thus, even if the defendant Kim Jong did not explain the fact that each of the above numerical values was in normal values as a result of the pre-examination for the instant surgery, it cannot be deemed that the deceased lost an opportunity for early detection of liver cancer, and the causal relationship between the deceased's death and the death cannot be acknowledged.

The plaintiffs' assertion in this part is without merit.

2) Claim for damages due to nonperformance

According to the aforementioned facts and the statements in Eul evidence Nos. 1, 2, and 3 (including each number), defendant Kim Jong-si explained the effects, side effects, and a merger certificate to the deceased before the instant operation, and it can be recognized that the instant operation was successful and the progress of the operation was well-grounded. With the proof of the plaintiffs, it is difficult to recognize that the above Defendants did not perform their obligations under the instant medical contract with the defendant corporation, and there is no other evidence to acknowledge otherwise, and since the deceased concluded the medical contract with the defendant corporation, the plaintiffs cannot be held liable for contractual nonperformance with respect to the defendant Kim Jong-so, who is not the defendant corporation.

The plaintiffs' assertion in this part, which is premised on the above defendants' default, is without merit.

5. Conclusion

The plaintiffs' claims against the defendant in Korea against the defendant are justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. Since the claims against the defendant corporation and Kim Jong-tae are without merit, they are dismissed. It is so decided as per Disposition.

Judge Han-hee

Judges Kim Gin-jin

Judges Kim Gung-sung