(영문) 서울북부지방법원 2013.5.2. 선고 2011가합4845 판결

1. The defendant shall pay to the plaintiff 174,410,788 won with 5% interest per annum from July 25, 2010 to May 2, 2013, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 292,419,493 won, and from July 25, 2010 to the service date of a copy of the claim of this case and the application form for modification of the cause of the claim of this case, 5% per annum, and 20% per annum from the next day to the day of complete payment.

Reasons

1. Facts of premise;

A. Status of the parties

The defendant is a doctor running "D Council member" in Gangnam-gu Seoul Metropolitan Government, and the plaintiff received medical treatment from the defendant from January 15, 2004, and on July 25, 2010, the plaintiff suffered a disability, such as low carbon brain damage after undergoing a WIG test at the defendant's hospital.

(b) Conducting a WIG safety inspection;

1) On July 25, 2010, the Plaintiff received medical treatment from the Defendant due to the above trajection, etc. Accordingly, the Defendant, on the same day, conducted a WIGis test to the Plaintiff for the accurate diagnosis of the symptoms (it is acknowledged that the Defendant asserted that the Plaintiff was conducting a WIGis test, but there is no evidence to acknowledge it, and that it was the Defendant to conduct the above WIGis test to the Plaintiff in full view of the purport of the entire pleadings in the entries in Gap evidence 2.

2) The Defendant administered a propool 4mg to the Plaintiff in order to conduct a WIG border test, but did not have a water surface guidance, administered an additional propool 4mg, and administered an aggregate of 8mmpt. After which, the Defendant maintained the administration volume to maintain the water surface at 60m/hours, and among the WIG border tests, the early oxygen oxygen map (SPO2) was 90-96% at the end of the Plaintiff.

3) The Plaintiff’s height was 172cm and the body was 81.5km at that time.

1) While the Defendant was carrying out the internal border inspection, the Plaintiff stopped the internal border inspection and started to take emergency measures. However, the Defendant did not secure the internal border inspection and performed only ampl-bu-baging (ambaging) to the Plaintiff.

2) On July 25, 2010, the Defendant reported to the Dobong Fire Station 119 Safety Center 12:31, 2010, the Defendant transferred the Plaintiff to the emergency room of Hanil Hospital using the first-aid vehicle called to the Defendant hospital at around 12:48. At around 12:48, the first-aid unit, while inserting the means of arrest to the Plaintiff, was carried out via a viageting the means of arrest to the Plaintiff.

(d) Transfer to an oriental medical hospital;

1) On July 25, 2010, the Plaintiff arrived at the Han-il Hospital. At the time of arrival, the Plaintiff’s food condition was her in the state of mixed-harm (sult reaction to the sule, without any awareness), and was in the state of abnormal repulmonation. The active repulmonation was 200/120mHg, 136mHg of blood pressure, her body temperature 36mp, and her body temperature 87% higher than normal value, and the early oxygen oxygen was 87% higher.

2) In the Korea-Japan Hospital, 12:50 on the same day the 13:05 day, the Korea-Japan Hospital implemented the mix, supplied a high concentration oxygen, influorine infinite, and performed the marcing gas test and blood test. On the same day, the hospital inserted the marcium to the Plaintiff, and at the time the Plaintiff’s marcium was transferred to 99%.

3) On the same day, 13:20 Plaintiff’s vitality was stable at blood pressure 160/100mHg, 104/ minutes of beer and beer, and 16/minutes 16/minutes. On the same day, 14:01 oxygen was also viewed as normal opinion. The Plaintiff was taken 14:45 brain computers on the same day, and was hospitalized in the middle-patient’s hospital on the same day. The Plaintiff was hospitalized in the middle-patient’s hospital on the same day.

4) The Plaintiff was hospitalized in Hanil Hospital from July 25, 2010 to August 23, 2010.

E. The plaintiff's present state

The Plaintiff was hospitalized in the F Hospital from August 24, 2010 to August 27, 2010 after the Plaintiff was discharged from the Korea-Japan Hospital. After that, the Plaintiff was hospitalized in the National Rehabilitation Center from September 2, 2010 to November 15, 2010, and was hospitalized in the Korea-Japan Hospital from January 8, 201 to January 31, 201. After the said accident, the Plaintiff was hospitalized in the Korea-Japan Hospital from January 8, 201 to January 31, 201. After the said accident, the Plaintiff led to the reduction of memory, weakening of permanent and permanent physical exercise power, and the symptoms of the left-hand part-hand part of the hospital.

(f) Relevant medical knowledge;

(i) Propool;

A) Propolol is the most recently introduced Malic anesthesia, which has a similar function to the pathal pental, and is an alkyl phol. It is a alkyl phol.

B) In a pharmaceutical description, the patient's reflect until clinical signs of anesthesia occur.

In order to observe the response and determine the volume of a medicine, in the case of inducing a general anesthesia, 40mg for adults, 40m for each 10 seconds, for adults under the age of 55, and 1.5-2.5m for an adult under the age of 55, he/she may reduce the total amount of administration (20-25m/ minute) by reducing the rate of administration, and in the case of over 55 years of age, he/she shall normally reduce the rate of administration (reduction by 20%), and in the case of 55 years of age, he/she shall reduce the rate of administration by 3, and in the case of IV patients, 20m for each 10 seconds.

C) In addition, in the case of adults and the aged to maintain the general anesthesia in the pharmaceutical manual,

Average running speed is different depending on patients, but it is generally explained that the state of anesthesia can be maintained at a speed of 4 to 12 km/hours per body.

D) There are low blood pressure, respiratory suppressions, etc. due to side effects of propool, with respect to propool

Since there is no path, it is necessary for elderly patients to reduce their dosages, and the heart, respiratory machine, kidne, or liver damage patients shall be carefully administered, and when conducting a light test on the surface of the water by propool, doctors with a professional knowledge of cardiopulmonary resuscitation shall be used in a state with equipment to maintain the climate and to perform cardiopulmonary resuscitation, and continuous surveillance shall be conducted during the examination.

(ii) first aid under respiratory conditions;

A) Acopic respiratory part, but pulmonary suspension causes low oxygen, and eventually is brain damage and heavy.

In order to cause damage to the required long-term and cause death, the first aid should be provided as soon as possible under the pulmonary care because the brain low-carbon symptoms are improved only when not more than 3 to 4 minutes.

B) as first-aid for the respiratory, ① as first-aid for the patient, and as first-aid for them;

(2) An artificial smoking shall be performed through a vial-, amping (ambu-baging, attaching a patient's entrance and knife to his/her jumor, attaching a jumor in the shape of jumor (ambu-bag, and a back valve bed) in a fake form, and (c) cardiopulmonary resuscitation that pressures the patient's chest, shall be carried out, and a epinephri, etc. shall be injected into the bed.

C) In general, when the mechanism is closed, the mechanism would normally be carried out to maintain the mechanism by inserting the tamper into the engine through the patient’s entrance or coination. The tamper’s engine can secure the mechanism by inserting the tamper into the engine through the engine, and can supply the oxygen and air to the engine where the oxygen is connected to the outside, and where the tamper’s artificial absorption is performed by connecting the tamper connected to the oxygen to the outside. In the case of an engine, the inserted board of the patient’s body, which has conducted telegraphic anesthesia, ordinarily uses the tamper and ordinarily moves into the tamper, not the engine tamper. After checking the tamper’s tamper where the tamper is located, the engine tamper will be inserted into the engine and the engine tamper will be inserted into the body.

3) Low carbon and low carbon brain damage (hypoxic brain)

A) When an oxygen oxygen was conducted an dynamic gas analysis test (ABGA) in a state with a low voltage of oxygen pressure due to difficulty in pulmonary function, it means the cases where oxygen pressure is less than 60mHg or oxygen absorption is less than 90%. In particular, oxygen symptoms may cause changes in the area of the mid-tour boundary. In the case of acute low-carbon oxygen, symptoms such as disorder of judgment similar to acute alcohol addiction, physical equipment, etc. may cause symptoms such as pulmonary alcohol addiction, and death due to pulmonary difficulty. If low pulmonary resuscitation is heart, it would eventually result in death due to pulmonary disorder.

B) On the other hand, low-carbon brain damage is a cerebral cerebral cerebral tension caused by low blood pressure or respiratory part, and is caused by cardiopulmonary pulmonary mar disorder. The specific reason is that it is an cardiopulmonary marcule, shock, and cirical marcule accompanied by cardiopulmonary typhrosis, heart stop, and cirical marcule.

[Ground of recognition] The absence of dispute, Gap 1 through 5, and 15 certificates (including branch numbers if there are branch numbers; hereinafter the same shall apply), the result of the physical examination by the court of this case for the Bag-dong Hospital affiliated with the Egrative University affiliated with the Egrative University, the result of the fact inquiry by the medical corporation, the Hanil Medical Foundation Hospital of Korea, and the Gangnambuk Fire Prevention Center, the purport of the whole pleadings

2. Formation of the right to claim damages;

A. Grounds for liability

(i)propool negligence;

A) The parties’ assertion

The plaintiff is older than 57 years old at the time of the accident and operated several times in the respiratory system.

Although the defendant should reduce the investment volume of propool in consideration of the circumstances with which he received the experience, the defendant asserts that he exceeded the investment volume by administering the propool twice to the plaintiff.

The defendant asserts that the amount of propool administered to the plaintiff was appropriate, and that there was a symptoms of pulmonary health due to the plaintiff's damp drinking.

B) Determination

According to the statements in evidence Nos. 11 through 14, and 16, the plaintiff's accident occurred.

The fact that the Plaintiff was 57 years of age at the time of birth, that the Plaintiff received two times at the Youngdong Hospital affiliated with the medical school affiliated with the medical school of the next generation in around 1998, that the Plaintiff was aware of the Plaintiff’s work experience in the medical examination for five years, and that the Plaintiff was aware of the Plaintiff’s work experience in the medical examination for five years.

Meanwhile, as seen in the above premise, in a case where a general anesthesia is conducted by administering a surface propool as seen in the above premise, an adult under the age of 55 shall administer 1.5 km per body, and in the case of over 55 years of age, a reduction (Article 20% reduction) shall be generally made. In general, in order to maintain a general anesthesia, 4-12 g/ hour per body. In light of the fact that the amount of propool that can be administered for the Plaintiff under the age of 57 is 97.8 g and 163 g [1.5 g x 81.5 g x 81.5 g x 80 g x 80 g (20 %) and the amount of administration to maintain a general anesthesia is 60.87-284/284-280 x 80 g/ 285 g of total anesthesia, so it is difficult for the Defendant to view the Plaintiff to have an excessive pulmon at the time.

Therefore, this part of the plaintiff's assertion on the premise that the investment volume of propool is excessive is without merit.

(ii) negligence on the surface of the water and on first aid after the occurrence of an accident;

In full view of the facts acknowledged earlier and the purport of the entire arguments, the following facts are examined:

In light of the above, the Defendant’s 119 Emergency Medical Service Corps, while carrying out the e-mail test on the Plaintiff, did not secure the Plaintiff’s ability to take emergency measures when the Plaintiff shows the e-mail without any e-mail, provided only e-mailing ampinging out the Plaintiff. On the other hand, the Defendant’s 119 Emergency Medical Service Team immediately called the Plaintiff upon the Defendant’s report, carried out e-mailinginging out the Plaintiff at the time of carrying out the e-mailing device, etc., which was 87% at the time of the arrival of the emergency room, and provided 9% of the e-mailing level at 150,000 at the time of the arrival of the emergency room. However, the Defendant did not provide materials to support e-mailing the Plaintiff’s e-mailing test, and did not reverse the Plaintiff’s initial statement that the Defendant himself performed the e-mail test at the latest, and did not have any credibility in the Plaintiff’s assertion.

In full view of these circumstances, the Defendant appears to have conducted a WIG test using a propool in a unreasonable manner without being equipped with the device for maintaining the patient’s airway, artificial smoking, and oxygen supply facilities, i.e., facilities for immediate resuscitation. Even if the Defendant did not so, it is clearly recognized that the Defendant failed to take appropriate measures to ensure that the Plaintiff was able to promptly secure the oxygen and supply the oxygen at the time of the WIG test and prevent the Plaintiff from lowering the oxygen level by supplying the oxygen. Thus, the Defendant is liable to compensate for property and mental damage resulting from the damage of low oxygen cerebriform, which the Plaintiff suffered due to the instant medical accident.

B. Limitation on liability

On the other hand, the following circumstances, which are acknowledged by comprehensively taking into account the above evidence and the overall purport of the arguments, namely, where normal treatment takes place, it is reasonable to consider various circumstances occurring during the pleadings of this case as follows: (a) it is reasonable to view that taking into account in calculating the amount of damages that the defendant should compensate for to the plaintiffs, in line with the ideology of the damage compensation system, based on the fair and reasonable allocation of damages; (b) it is reasonable to view the limitation of liability as 50% in light of the facts acknowledged earlier, since it is reasonable to view that the limitation of liability ratio is more than 50%, since it is reasonable to view the defendant's liability is limited to 50% since it is reasonable to view the limitation of liability ratio in light of the above facts.

3. Scope of damages.

(a) Actual profits;

In the absence of dispute, based on Gap evidence No. 7 and the results of the physical examination by the Yoman University affiliated with the Egynam University of this Court, based on the following facts acknowledged and evaluated in accordance with paragraph (1) as a whole, based on the overall purport of the arguments: (2) the amount of lost income suffered by the plaintiff due to the accident in this case is calculated at the present price as of the date of the accident in this case by deducting intermediary interest at the rate of 5/12% per month pursuant to the Hofman Calculation Act, which deducts the amount of lost income from the accident in the proportion of 5/12% per month, 25,892,903 won as stated in paragraph (2) (the number of days less than a month shall be included in the period of less than a small amount,

(i) the facts of recognition and evaluation;

(a) Gender and date of birth: Males and Girs; and

B) Age at the time of the instant accident: 57 years of age and 8 months;

C) The date on which the life expectancy and life expectancy end: 23.55 years, and the presumption that it will continue until February 4, 2034.

D) Maximum working age: Until November 7, 2012, on which the 60-year-old seal is affixed.

(e)vocational, income and operating period: any material from which the plaintiff's actual income amount can be known;

As there is no reason to do so, the plaintiff is deemed to be able to obtain the income of ordinary workers on the investigation report on the actual condition of construction business wage, which is published by the Korea Construction Association for each of the following periods, at least 22 days per month as an ordinary worker’s average monthly wage (the defendant asserts that there is no plaintiff’s lost profit because the plaintiff is a basic livelihood recipient, but the person claims that there is no future income, barring any special circumstance to deem that there is no future income, it can be deemed to have obtained the income of the amount of ordinary wage according to the gender and age if the person is an adult (see Supreme Court Decision 66Da1504, Nov. 12, 196). Since there is no evidence to acknowledge that the plaintiff would not have any income in the future, the defendant’s above assertion is without merit).

(1) 68,965 won per day from January 1, 2010 to August 31, 2010

(2) From September 1, 2010 to December 31, 2010, 70,497 won per day.

(3) 72,415 won per day from January 1, 2011 to August 31, 2011

(4) 74,008 won per day from September 1, 201 to December 31, 2011

(5) From January 1, 2012 to August 31, 2012, 75,608 won per day.

(6) 80,732 won per day from September 1, 2012 to December 31, 2012

(f)the ratio of injury to the latter and labor capacity;

(1) The rate of loss of labor capacity during the period of hospitalization: the Plaintiff’s hospital from July 25, 2010, and Fil Disease.

On November 15, 2010, the Plaintiff was hospitalized in the National Rehabilitation Center and discharged from the hospital on November 15, 2010. Since the Plaintiff was hospitalized in the hospital from January 8, 201 to January 31, 201, and received medical treatment, the Plaintiff’s loss of labor capacity by 100% during that period.

(2) Labor disability rate after the period of hospitalization: The Plaintiff’s low birth rate after the instant case.

As a result of brain damage, 56% of the working ability is recognized as permanently because it falls under Class IX-B-3-5 on the evaluation table for the loss of Mabrid labour ability due to the reduction of memory, the weakening of permanent movement ability, and the left-hand part, etc.

2) Calculation: 25,892,903

A person shall be appointed.

(b) Medical expenses;

1. Expenses for medical treatment: 1,048,470 won;

In full view of the purport of the argument in Gap evidence No. 7, the plaintiff is an accident of this case.

It is recognized that the total amount of KRW 1,048,470 was spent.

(b) Future treatment costs: 44,242,641 won (=36,118,320 won ( rehabilitation treatment costs and medicine costs) + 8,124,321 won (subsidized equipment)

This Court's change in the result of a request for physical examination of a woodbin hospital attached to the Egymbin University

In full view of the purport of the whole, the plaintiff needs to provide rehabilitation treatment each month [135,840 won = 11,320 won (per time) x 3 times (per week for 4 weeks) x 4 weeks (per month), and 90,000 won (per time for 300 won) x 30 days (in calculation of 30 days per month). The plaintiff needs to provide rehabilitation aids (2,090,000 won, five years within 20,000 won) and walking aids (two years within 20,000 won) necessary (in the result of physical examination of a wood hospital attached to a university or college of Ilmania, 4,10 walking chairs in the future on the premise that the life of the plaintiff is 21 years, but it is necessary to provide rehabilitation aids for 20 years before the conclusion of argument, the plaintiff is deemed to have provided rehabilitation aids for 20 years and 4,000 won on the basis of the date of the first oral argument.

(a) rehabilitation treatment costs and medicine costs;

A person shall be appointed.

B) Assistants: KRW 8,124,321 (= KRW 6,723,321 + KRW 1,401,00)

(a) Electrical wheelchairs (2,090,000 won, and five years for internal term): 6,723,321 won; and

A person shall be appointed.

(b) Pedestrian aids (200,000 won, and two-year period of internal equipment): 1,401,000 won; and

A person shall be appointed.

In full view of the overall purport of the pleadings as a result of the physical examination commissioned by the YID Hospital annexed to the GID University, it is reasonable to deem that the Plaintiff had the opening of a family from the date of the accident to the date of the closing of argument in this case. As such, the opening of a family from the date of the accident to the date of the closing of argument in this case is calculated on the following grounds:

A person shall be appointed.

D. Limitation on liability

(i) Liability ratio: 50 percent;

(ii) Calculation: 149,410,788 won = [25,892,903 won (on-the-job profit) + 1,048,470 won (on-the-job treatment expenses) + 44,242,641 won (on-the-job treatment expenses) + 227,637,561 won (on-the-job treatment expenses), ¡¿ 50 percent, and abandoned below won];

(e) Consolation money: 25,000,000 won; and

The background and result of the instant accident, the Plaintiff’s age, the degree and degree of disability, the progress of treatment, the degree of negligence of the Defendant, and other various circumstances shown in the argument of the instant case.

4. Conclusion

The defendant is obligated to pay to the plaintiff 174,410,788 won = 149,410,788 won + 25,000,000 won (the above data) and damages for delay by the rate of 5% per annum as stipulated in the Civil Act from July 25, 2010, the date of the accident of this case until May 2, 2013, which is the date of the judgment of this case, to the date of the decision of this case, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, etc., from the next day to the date of full payment. Thus, the plaintiff's claim of this case of this case is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.