The case holding that in a case where the Defendant, a doctor, was discharged from Eul due to the discharge of Eul, and was performed re-operation due to the aggravation of infectious disease, such as detection of the same germs in a higher hospital, but died after the symptoms of the flachi, the Defendant was acquitted on the ground that he could not be held liable for the crime of occupational death by occupational negligence, in the case where he was found guilty on the ground that he did not assume the responsibility for the crime of occupational death by occupational negligence.

In a case where: (a) the Defendant, who was a doctor, carried out knee-free knee-free knee-free knee-free knee-free knee-free knee-free knee-free knee-free knee-free knee-free knee-free kne-free-free fe-out, and had been charged to the doctor B, who was not found to have been infected with the hne-free fe-free fe-free fe-free fe-out, which was known as the “susper,” and was found to have caused the death of A due to the overall active fe-free fe-out as a result of the fegral cultivation test; and (b) was discharged by the prosecutor conducted at the higher hospital; and (c) was discovered to have caused the death of A, without the complete removal of infection.

Article 268 of the Criminal Act, Article 325 of the Criminal Procedure Act

Defendant

Defendant

Jinwon et al.

Law Firm National Law Firm, Attorney Kim Gyeong-soo

Suwon District Court Decision 201DaMa2236 decided March 15, 2013

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. Error of mistake

The Defendant took appropriate measures against the victim through criminal records, etc., and after the victim was convicted, the Defendant had the duty to transfer to the superior hospital to the victim. As such, the Defendant did not violate the duty of care in relation to the treatment and treatment of the victim. Even if the Defendant was negligent in performing his/her duties, the victim died of the Defendant’s occupational negligence and the death of the victim, regardless of the Defendant, as such, there is no causal link between the Defendant’s occupational negligence and the death of the victim.

B. Unreasonable sentencing

The punishment of the lower court (fine 3,000,000) is too unreasonable.

2. Summary of the facts charged in this case

A. Presumed facts

The Defendant is the operator of the instant hospital and the person in charge of the external affairs of Ansan-si △△ Hospital (hereinafter referred to as the “instant hospital”), and Nonindicted Party 1, respectively.

On May 9, 2008, the Defendant, around March 2008, carried out, on the victim non-indicted 2 (year 65), who was admitted to the pain of both knee-cosing, the inserting-in of a personal mission in the left knee-free kne, and on May 23, 2008, the Defendant carried out, on May 23, 2008, the inserting-in of a personal mission in the right kne-free kne.

From May 27, 2008, after the completion of the operation, the victim showed symptoms of infection, such as the occurrence of the side in the body of each operation, the scarcity, and the scarcity of pain.

From June 8, 2008, the Defendant administered anti-biotics money, and on June 11, 2008, the Defendant carried out an open washing and alteration medication for kneeeeees. As a result of the above examination, the Defendant re-exploited both knee-free knee-free knee-free knee-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-free kne-on 8, 2008.

On the other hand, the victim complained of inconvenience to Nonindicted Party 1 by experiencing symptoms that prevent the right bridge from walking on the wind that occurred on July 10, 2008 when intending to walk at the beds. On July 25, 2008, the Defendant, who is in charge of the insular surgery, was exposed to radiation inspection for the victim on July 25, 2008, and the Section of the personal mission inserted into the victim’s right knee, was deprived of the victim’s right knee, and was found to find out the phenomenon of the human knee, and tried to ree the operation department and replace the human mission to correct it on the same day. However, even though the Defendant failed to restore the offs of the insane and the damaged part of the human knee because the overall proof of the Defendant was not good.

Since then, Non-Indicted 1 continued the preservation measures against the victim, and the victim appealed again from August 11, 2008, but Non-Indicted 1, upon discharging the victim on August 26, 2008, recommended that the right bridge operation was defective after the two months.

On August 28, 2008, the victim still left knee in a nearby hospital where knee remains, and the doctor in charge diagnosed both knee-knee-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-ket.

The victim, at the ○○ University Hospital on September 18, 2008, removed all the artificial colony of the human mission inserted at the instant hospital and the childcare organization infected with the instant hospital, and received antibiotics and cement mixtures operations in the same place. The victim was killed on October 28, 2008, since September 24, 2008, when the symptoms of kidy infection were not recovered.

(b) Criminal facts;

The Defendant is a doctor of the fluence surgery and the main body of a diplomatic mission inserted with the victim Nonindicted Party 2, and Nonindicted Party 1 had a duty of care to check the conditions of the hospitalized patient after the surgery, to check the infection conditions of the patient, including blood tests, etc., in addition to the flusium test after the surgery, and to check that the patient had symptoms of infection, if it is re-verification that the patient had symptoms of infection, not only the flusium test, but also the flusium test after July 19, 2008, the Defendant had a duty of care to remove the infected patient by immediately inserting the flusium, the flusium, and the flusium, and if it is deemed difficult to take appropriate measures on his own,

Nevertheless, the Defendant and Nonindicted Party 1, in the instant hospital located in Ansan-si (hereinafter omitted), from July 19, 2008, expected that the ESA was treated solely on the result of spawn test on two occasions with respect to the victim. The Defendant and Nonindicted Party 1, who did not take other necessary measures such as blood tests that can detect the ESA and treating the victim simply to discharge without taking necessary measures, such as the transfer of a superior hospital. The Defendant and Nonindicted Party 1 caused the victim to die from spaA due to chronic renalsis in the course of management immediately after the surgery at the instant hospital.

3. The judgment of the court below

6) The lower court found the Defendant guilty of non-indicted 1’s non-Party 1’s non-Party 2’s failure to comply with this case’s disease treatment and re-operation on the ground that the Defendant did not encourage all of the patients to recover their health, and that it was difficult for the Defendant to respond to this case’s disease by taking account of the following circumstances: ① the victim’s knee, knee, knee, knee, fe, fe, fe, e., e., e., fe., fe., e., e., g., e., e., e., g., e., e., e., e., g., e., e., g., e., e., e., g., e., e., e., e., e., e., g., e., g., g., e., g., g., g., e., g.

4. Judgment of the court below

가. 원심에서 적법하게 채택하여 조사한 증거에 의하여 알 수 있는 다음과 같은 사정, 즉 피해자의 MRSA 감염은 피고인의 피해자에 대한 양측 전슬관절 치환술 이후에 발생한 것이었고, 그에 따라 피고인은 피해자의 수술 부위 감염에 대한 치료를 계속해 왔던 점, 피고인이 마지막으로 시행한 2008. 7. 19.자 피해자의 좌측 슬관절 천자액에 대한 검사 결과 ESR, CRP 수치는 각 49㎜/hr, 5.76㎎/㎗로 여전히 염증 소견이 남아있었음에도, 피고인은 2008. 7. 19. 양측 수술 부위에 대한 세균배양검사 결과 음성반응이 나오자 그 후 피해자가 퇴원할 때까지 감염 여부를 정확하게 확인할 수 있는 ESR, CRP 및 세균배양검사 등을 전혀 시행하지 않았던 점, 피고인은 공소외 1이 주도적으로 피해자의 치료에 관여한 후인 2008. 7. 25.에도 피해자에 대하여 수술 부위를 다시 절개하고 연골 대체물을 교체하는 수술을 시행한 점, 피고인이 근무하는 이 사건 병원 의료진은 2008. 8.경 피고인에게 피해자의 상태에 관하여 알리고 그에 따라 피고인이 피해자의 치료에 대하여 지시하거나 피해자를 회진하기도 하는 등 계속하여 피해자의 치료에 관여하였고, 공소외 1과 피해자의 상태 및 향후 치료 방안에 관하여 협의하기도 한 점, 이 사건 병원은 의사가 5명에 불과한 그리 크지 않은 규모이고, 피해자과 같이 전슬관절 치환술 후 감염이 발생한 경우 정형외과와 일반외과의 긴밀한 협진이 필요할 것으로 보이는 점 등에 비추어 보면, 피고인에게 피해자의 감염 발생 후 처리에 관한 업무상 과실이 존재하는 것이 아닌가 하는 일말의 의심이 든다.

B. However, in order to recognize a medical worker's negligence in a medical accident, even though the medical worker could have predicted or avoided the occurrence of the outcome, it should be recognized as negligence that could not have been predicted or avoided. In determining the existence of such negligence, the standard for the degree of ordinary attention engaged in the same work and duties must be taken into account, and the general level of medical science at the time of the accident, medical environment and conditions, characteristics of the medical practice, etc. (see Supreme Court Decision 2009Do13959, Sept. 8, 201). The burden of proof of criminal facts prosecuted in a criminal trial must be based on the proof of probative value that the judge has a reasonable doubt that the facts charged are true to the extent that there is no reasonable doubt. Thus, if there is no evidence to form a conviction, even if there is doubt about the defendant's guilt, it is inevitable to determine the defendant's interest as the defendant's interest (see Supreme Court Decision 2006Do171367, May 26, 2006, etc.).

C. The following facts revealed by the records: (a) the victim was found to have been infected by ESA at the time of scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic sc).

D. Therefore, the facts charged in this case constitute a case where there is no proof of facts charged, and the judgment of the court below which found the defendant guilty is erroneous in the misapprehension of facts which affected the conclusion of the judgment, and thus, the defendant'

5. Conclusion

If so, the defendant's appeal is reasonable. Thus, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of sentencing chief, and the following decision is rendered again after pleading.

The summary of the facts charged in this case is as shown in the above 2. Paragraph, and this constitutes a case where there is no proof of criminal facts as stated in the above 4. Paragraph, and thus, it is decided to pronounce innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act. It is so decided as per Disposition

Judges Yu Nam-ju (Presiding Judge)

Note 1) The Defendant’s “Defendant” stated in the indictment was correct as it is apparent that it is a clerical error in the “Nonindicted 1” in the content of the facts charged and the record thereof.