Requirements and criteria for recognizing a doctor's negligence in a medical accident, and whether the same legal principle applies to an oriental medical doctor (affirmative)

Article 268 of the Criminal Act

Supreme Court Decision 2010Do10104 Decided April 14, 201 (Gong2011Sang, 960) Supreme Court Decision 2013Do14079 Decided May 29, 2014

Defendant

Defendant

Mountainous Law Firm, Attorneys Lee Dong-Gyeong et al.

Seoul Central District Court Decision 2012No3438 Decided December 12, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The court below found the facts and circumstances stated in its adopted evidence, and found the defendant guilty of the charges of this case on the ground that the defendant violated such duty of care, even though the medical purpose of this case was not to cure urology but to alleviate urology and pains of the victim, the defendant was to pay careful attention to the possibility of urology caused by urology, and if necessary, he was to have a duty of care to transfer to a specialized hospital to receive medical treatment, and there was a proximate causal relationship between the defendant's occupational negligence and the victim's injury, and the victim's occupational negligence and the victim's death.

2. However, it is difficult to accept the above judgment of the court below for the following reasons.

A. In order to determine the existence of negligence in a medical accident, it is recognized that a doctor could have predicted or avoided the occurrence of the outcome, even though he/she could have been able to do so, and that the doctor could not have predicted or avoided it. Determination of the existence of negligence ought to be based on the standard of general attention of ordinary workers engaged in the same business and occupation, and 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. Such legal doctrine also applies to herb doctors (see Supreme Court Decision 2010Do104, Apr. 14, 201, etc.).

In addition, the facts charged in a criminal trial should be proven by the prosecutor, and the judge should be found guilty with evidence of probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, it should be determined with the benefit of the defendant.

B. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts and circumstances.

1) According to the fact-finding results, etc. on the Korean Medical Association, it is not prohibited that a patient with a urology or a urology urology urine urine urine urine urine urine urine urine urine or a patient with a urine urine urine urine urine urine, and that a thorough disinfection should be conducted before urine urine urine urine urine urine so that it can not cause serious damage to a patient with a urology as much as or too deep as necessary or other organizations. Therefore, when the degree of attention of a general oriental medical doctor engaged in the same duties and occupational category as the Defendant is based on the standard, it cannot be readily concluded that there was any negligence by itself on

2) The victim had been continuously receiving medical treatment from 1999 to ○○○ Hospital, and had been constantly receiving medical treatment from her own urology to her own urology, not from her own urology, but from her own urology to her own urology at ○○ Hospital. In addition, it seems that the victim had been aware of her urology and had been receiving medical treatment from her own urology to her own urology, and that the victim was also aware of her urology to her urology at ○○○ Hospital. Thus, the defendant seems to have considered that her urology was subject to appropriate medical treatment at ○○ Hospital, etc.

3) The germs raised from the parts of the victim’s satisfaction that were mounded by mound and cut, are found in ordinary mound. Therefore, it is difficult to readily conclude that such germs are infected by the Defendant in the course of administering mound, etc.

4) If the victim took photographs of the victim taken at the time of the victim’s treatment at △△△ Hospital after receiving the Defendant’s treatment, the victim was tampers only on the left part of the falls. The part is closely related to the upper part of the upper part of the floor of the falls of the upper part of the body where the victim was living in the upper part of the body where the victim was living in the upper part of the body before receiving the treatment, and the upper part of the body where the victim took a business trip to Japan, and is somewhat far away from the upper part of the upper part of the back of the falls of the body where the victim was living in the upper part of the body where the victim was living in the upper part of the body where the victim was living or

5) In light of the fact that “the second infection caused by the blood transfusion that has been maintained for a period of two months,” the Nonindicted Party of a medical doctor who issued a medical certificate stating that “the second infection occurred in the urology of the victim,” is an intention to conduct an operation to cut the part of the victim’s urine, and that the above medical certificate was expressed in the court that the victim expressed his presumed opinion in consideration of various circumstances, such as the treatment process, etc., and that the victim was much more severe than the pain after the son was in Japan, and the body was open, etc., it cannot be ruled out that there was a possibility that the victim’s left aloneion of the victim’s body was committed by the Defendant, not due to the Defendant’s urry behavior, but due to the Defendant’s deciling behavior, but to the upper part of the body before the right part of the victim’s body at the time of the medical examination and treatment. In fact, the victim’s testimony was conducted as a whole above the front part of the son’s left part of the victim’s body.

6) Meanwhile, on May 6, 2008, the victim was recommended by the defendant to undergo a medical examination for imposition because the left side of the defendant was not in depth, and thereafter, the victim was asked to introduce the imposition of the charge to the defendant. Since the victim was asked to do so, the victim was not able to give a warning to the ○○ Hospital. Nevertheless, on May 19, 2008, 13 days after the date of the above recommendation, the victim was sent to the ○○○ Hospital. At that time, the victim returned home without being hospitalized even after being urged to be hospitalized in the face of the color, and the left side of the △△△△ Hospital was able to improve the △△△△△△ Hospital’s cryption and received a diagnosis by being hospitalized at the △△△△△ Hospital after being hospitalized in the face of the △△△△△ Hospital.

C. Examining these facts and circumstances in light of the legal principles as seen earlier, it is difficult to view that the evidence submitted by the prosecutor alone was insufficient to prove that the Defendant failed to perform his/her duty of care to the extent required for a universal oriental medical doctor engaged in the same work and occupational category, and thereby, the Defendant caused injury, such as the left singingle, to the extent that there is no reasonable doubt

Nevertheless, the court below found the defendant guilty of the facts charged in this case on the ground that there was a proximate causal relation between the defendant's mistake and the victim's injury, because the defendant did not pay a serious attention to the risk of equal infection or did not transfer the victim to a specialized hospital at the time, solely based on the circumstances stated in its reasoning. Such judgment below erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the certification of criminal medical malpractice and causation, which affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and 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 Shin (Presiding Justice)