[1] The nature of a medical obligation owed by a physician to a patient (i.e., means of treatment obligation), and whether it is presumed that the result of the medical treatment cannot be satisfied (negative) / Whether the occurrence of a harm resulting from a follow-up disability as a result of medical practice can be presumed to have been negligent in the course of medical practice (negative in principle)

[2] In a case where symptoms causing serious results to a patient during or after an operation occur, whether the symptoms can be presumed as medical negligence if indirect facts that cannot be deemed as having any other reason than medical negligence are proven with respect to the occurrence of symptoms (affirmative) and the limitation thereof

[1] Articles 390 and 750 of the Civil Act, Article 202 of the Civil Procedure Act / [2] Article 750 of the Civil Act, Articles 202 and 288 of the Civil Procedure Act

[1] Supreme Court Decision 2007Da76290 Decided March 27, 2008 (Gong2008Sang, 608) / [2] Supreme Court Decision 2005Da5867 Decided May 31, 2007 (Gong2007Ha, 949) Supreme Court Decision 2010Da57787 Decided May 9, 2012 (Gong201Da10138 Decided October 11, 2012)

Plaintiff (Attorney Lee Jong-soo et al., Counsel for plaintiff-appellant)

School Foundation ○ Private Teaching Institutes (Law Firm, Law Firm No. 1, Attorneys Gyeong-Gyeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Na60380 decided February 12, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In full view of the admitted evidence, the court below found the following facts: (i) although the Plaintiff was 3-4 level her ability not to perform the primary surgery before the primary surgery, and only her urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine. (ii) The medical personnel of the Defendant hospital found the Plaintiff’s liability for damages due to the Plaintiff’s urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine urine.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. The medical treatment obligation owed by a physician to a patient is not an obligation to achieve the result of the patient’s treatment, but an obligation to provide necessary and appropriate medical treatment in light of the current medical level with due care as a result of a good manager’s duty to treat the patient. Therefore, it cannot be presumed that the result of the medical treatment was not satisfied. In addition, in a case where a subsequent disability occurred as a result of a medical practice, even if the subsequent disability was the best measure at the medical level at the time of the medical practice, or if the subsequent disability could occur either by a merger certificate of the medical practice at the time, or by a merger certificate, if the subsequent disability could occur secondaryly, it cannot be presumed that the symptoms exceeded the scope of a merger certificate generally recognized (see, e.g., Supreme Court Decision 2007Da26977, Mar. 27, 2008).

In addition, medical practice is performed in a field where highly specialized knowledge is required, and it is very difficult for ordinary citizens, other than experts, to clarify whether they have violated the duty of care in the medical process of a doctor, and whether there exists causation between the violation of the duty of care and the occurrence of damage. Thus, if there is symptoms causing a serious result to a patient during or after an operation, if indirect facts exist that make it difficult to deem that there are any other causes than medical malpractice, with respect to the occurrence of such symptoms, such symptoms are presumed to be medical negligence. In such a case, even in such a case, it is not permissible to assume that the doctor bears the burden of proof of negligence by estimating the causal relationship with the doctor’s negligence on the basis of circumstances where there is no probability to presume the occurrence of a result caused by a doctor’s negligence (see, e.g., Supreme Court Decision 2011Da10138, Oct. 11, 2012).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) From November 2007, the Plaintiff first applied to the △△ Hospital operated by the Defendant due to symptoms, such as pains and low pains that were not caused by both sides from January 2008, which led to the aggravation of low fluence and pains, which led to the symptoms of the brush and low brut symptoms, the brut and low brut symptoms, the left-hand brush, the difficulty of walking, urine, and urology.

(2) The medical personnel of the Defendant Hospital diagnosed the Plaintiff with a chromatic image (MRI), computer short-rises (CT), etc. on the basis of the results of the examination, etc. on the Plaintiff, 5-7, and 11-12, and the Defendant Hospital performed the Plaintiff’s surgery from March 19, 2008 to from March 17:30, 2008, with a chest 6-7, with a chromatic convergence and self-drogrative surgery (the first surgery). After the surgery, there were symptoms, such as pain and paralysis, which were serious pain to the Plaintiff, from March 19, 2008 to March 20, 204:5-6, and from March 204:204 to 17:20, the Plaintiff did not perform the surgery after the surgery, but did not perform the symptoms of the Plaintiff (the second surgery).

(3) On February 28, 2008, the Plaintiff’s records of the Dominar History Test has been weakened from Grade 4-5 on March 17, 2008 to Grade 3-4 on March 17, 2008. After the first and second operations, the class of the Dominar History was 0.

(4) On June 2009, the Plaintiff 1 and the second surgery, and received drug treatment and early rehabilitation treatment to stimulate the recovery of the flachising, and around June 2009, the Plaintiff measured the class of the flachising to the right, 3, the class of the flachising to the right, and the class of the flachising to the left-hand, 2-3, and the class D on the disability Classification of the U.S. Llachis damage Society (A grade, the flachising level, and the E grade). However, the symptoms have deteriorated again at the first instance court around August 201, when physical examination was conducted at the first instance court.

(5) According to the result of the first instance court’s appraisal of medical records and the fact-finding by the lower court with respect to the head of the Central University Hospital, ① the Defendant Hospital’s medical team approach to the pre-explosion room, and the method of the first instance court’s examination of the medical records has advantages such as directly removing the sub-explosion. On the other hand, there is a risk of suffering from eromatic damage or spaculation during the surgery, and it is known that there is a high risk of suffering damage when the eromatic damage is eromatic damage when the eromatic damage from the eromatic damage surgery. The Plaintiff’s eromatic damage from the eromatic damage surgery could not be ruled out even if the eromatic damage from the eromatic damage from the eromatic damage from the eromatic damage from the eromatic damage surgery. ② The Plaintiff’s eromatic damage from the eromatic damage from the eromatic damage from the eromatic damage.

(6) No. 6-7 of the Plaintiff’s chronology with severe ethrosis was 83.3% of the share of the ethropical ethrosis before the operation, and the Defendant hospital’s doctor emphasized several risks, such as failing to perform the operation to the Plaintiff and his guardian prior to the first veterinary operation.

C. According to these facts, the Plaintiff had been in progress to a considerable extent, such as the symptoms and opinions of damage to the scale of water before the first operation and the symptoms and opinions about the degree of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation of the emulation.

In addition, in light of the risk of damage to the scale of water, in particular, the possibility of damage to the scale of water that has the surgery under the relevant surgery after scarcity typhrosis, and the possibility of damage to the scale of water after the surgery, the examples of the surgery expected by the Plaintiff’s conditions before and after the surgery where the Defendant hospital did not perform the surgery, stressed several times on the possibility of damage after the surgery to the Plaintiff before and after the surgery, and the symptoms, such as paralysis of the Plaintiff’s failure to perform the surgery, have been deteriorated again through rehabilitation treatment, etc., it is difficult to conclude that there is no other cause other than medical malpractice, which may cause damage to the Plaintiff.

Examining these circumstances in light of the legal principles as seen earlier, it cannot be presumed that the Plaintiff was negligent in the medical care of the Defendant Hospital solely on the basis of only the result of damage to the scale of water that occurred after the surgery. The indirect facts cited by the lower court may constitute a circumstance that can presume the causal relationship between primary surgery and the damage to the scale of water, but further, it is difficult to view that the Plaintiff’s damage to the scale of water was a probable circumstance that can be presumed to have been caused by the medical care of the Defendant hospital’s medical personnel.

Therefore, the lower court should have deliberated on what causes may cause damage to the number of medical professionals in the course of the surgery, what is the specific contents of the duty of care required for the medical professionals of the Defendant hospital, whether specific measures or methods have been taken to prevent clibling damage or damage to the number of water during the surgery, and whether there are circumstances to deem that the result of the clibage damage or the clibage damage exceeded the scope of the generally recognized merger certificate in the course of medical practice. In so doing, the lower court should have determined whether there are circumstances to ensure the probability that the medical malpractice of the Defendant hospital could be presumed.

3. Nevertheless, the lower court recognized the Defendant’s liability for damages by presumption of causation with the negligence of the medical personnel of the Defendant hospital solely on the grounds that such probability is not secured. In so doing, the lower court erred by misapprehending the legal doctrine on presumption of causation with the negligence in the medical lawsuit, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Defendant’

4. Therefore, without examining the Defendant’s remaining grounds of appeal and the Plaintiff’s grounds of appeal, 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

Justices Ko Young-han (Presiding Justice)