[1] Details of the duty to be borne by a medical person and a patient under a medical contract / In a case where a person, other than a patient, requests a medical person to treat a patient whose consciousness is unknown or who is in a mental capacity, the standard for determining whether a medical contract is established

[2] In a case where: (a) a medical corporation Gap entered into a business agreement with the social welfare foundation Eul and the elderly health care center operated by the foundation Eul to have an emergency patient transferred to a hospital operated by the foundation Eul, and (b) a patient hospitalized in the above health care center was transported to the above hospital and received hospitalized treatment pursuant to the business agreement due to the mistake of the carer of the corporation Eul; (c) the contract party who entered into a medical contract for medical treatment with the corporation Eul was not Byung but Eul; and (d) the scope of medical treatment under the medical contract between the corporation Eul and the corporation Eul includes the treatment for the existing disability corresponding to the preservation of telegraph necessary for the treatment of the aggregate

[1] A medical contract is established between a medical person and a patient in a case where a patient requests a medical doctor or a medical institution (hereinafter “medical person”) to provide medical treatment, and a medical person starts to provide medical treatment in response to a request. Under a medical contract, a medical person bears the duty to provide medical treatment by using all medical knowledge and medical technology to treat a patient for the purpose of treating a disease, and the patient bears the duty to pay remuneration to the patient. Meanwhile, when determining who is a party to a contract constitutes an interpretation of the intent of the party involved in the contract, the same applies to the determination of who is the party to the contract. Therefore, where a non-patient requests a medical person to provide medical treatment with an unknown or medical capacity, the patient’s relationship with the requesting person, the circumstance leading up to requesting the medical treatment, whether the requesting person intended to bear expenses incurred in treating the patient, whether the requesting person intended to provide medical treatment, the patient’s consciousness and condition, the patient’s process of treating the patient, etc.

[2] The case holding that the judgment below erred by misapprehending legal principles, in a case where Gap medical corporation entered into a medical contract for medical treatment with Eul corporation and Eul corporation, based on the following facts: (a) in a case where Eul medical corporation and Eul medical corporation entered into a business agreement with Eul to require the patient to be transferred to a hospital operated by Eul corporation and received medical treatment; (b) in a case where Byung was hospitalized in the above medical care facility due to the negligence of Eul medical carer, and transferred to the above hospital due to the negligence of Eul corporation's caregiver and received medical treatment pursuant to the business agreement; and (c) Eul was liable for medical expenses due to the negligence of Eul corporation's caregiver; and (d) in light of the medical contract for medical treatment with Eul corporation and Eul, the parties to the contract entered into a medical contract for medical treatment with Eul was not Byung, but Eul corporation and Eul corporation; and (e) the patient was hospitalized in the hospital; and (e) the procedure and progress of the treatment was included in the preservation treatment for the telegraph necessary for medical treatment.

[1] Articles 105, 539, and 680 of the Civil Act / [2] Articles 105, 539, and 680 of the Civil Act

[1] Supreme Court en banc Decision 2008Da45828 Decided March 19, 2009 (Gong2009Sang, 456) Supreme Court en banc Decision 2009Da17417 Decided May 21, 2009 (Gong2009Sang, 849)

Medical Corporations, Mine-Backed Medical Foundation (Law Firm Lee & Lee, Attorneys Lee Sung-hoon et al., Counsel for the defendant-appellant)

social welfare foundation streak et al. (Law Firm Shinsung, Attorneys Park Young-ju, Counsel for the plaintiff-appellant)

Busan District Court Decision 201Na18267 Decided November 9, 2012

The part of the judgment of the court below against Defendant 2, Defendant 3, and Defendant 4 is reversed, and that part of the case is remanded to Busan District Court Panel Division. The Plaintiff’s appeal against Defendant 2, Defendant 3, and Defendant 4 is dismissed. The costs of appeal between the Plaintiff, Defendant 2, Defendant 3, and Defendant 4 are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal against the Defendant’s social welfare foundation’s shot tree

A. A. A medical contract is concluded between a medical person and a patient when a patient requests a medical doctor or a medical institution (hereinafter “medical person”) to provide medical treatment in response to his/her request. Under a medical contract, a medical person is obligated to provide medical treatment by using all medical knowledge and medical technology to treat a disease and to pay remuneration to the patient (see Supreme Court en banc Decision 2009Da17417, May 21, 2009). Meanwhile, a party to a contract constitutes a matter of interpreting the intent of the party involved in the contract (see Supreme Court en banc Decision 2008Da45828, Mar. 19, 2009). Accordingly, when a non-patient requests a medical person to provide medical treatment with food, office capacity, etc., whether the patient requested the medical person and the patient were the patient, how the patient was requested, how the patient was to provide medical treatment, whether the patient was the patient’s awareness and the patient’s intent to bear expenses incurred in the medical treatment, and whether the patient was the patient and the patient were the patient.

B. The lower court determined that: (a) Nonparty 1 did not have an obligation to pay the Plaintiff KRW 10 to Nonparty 2 (hereinafter “Defendant 2”) for the expenses incurred in the treatment of the Plaintiff on September 28, 2008, on the ground that Nonparty 2 did not have an obligation to pay the Plaintiff KRW 10 to Nonparty 2, who was not a party to a medical contract with the Plaintiff; (b) Defendant 2, who entered into an agreement with Nonparty 1, who entered into between Defendant 2 and Nonparty 6, and was sent back to △ Hospital operated by the Plaintiff pursuant to the instant agreement on the work for follow-up and hospitalized Treatment of Emergency Patients; and (c) Defendant 2, who was not a party to the medical contract with the Plaintiff or between Nonparty 1 and the Plaintiff, was not an obligation to pay KRW 10 to the Plaintiff for the expenses incurred in the treatment of the Defendant 2, who was not a business insurer of the Plaintiff; and (d) Defendant 2, who was not an obligation to pay KRW 70 to 30,569.7

C. However, we cannot agree with the above determination by the court below for the following reasons.

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

A) On July 3, 2008, the Plaintiff operating △△ Hospital (hereinafter “instant business agreement”) entered into a business agreement with the Defendant welfare corporation to provide medical treatment by sending the patient to △△ Hospital in the event of an emergency patient’s occurrence of the patient at ○○○○○○○○○, and the Plaintiff, if necessary, entered into a medical examination and hospitalization and, if necessary, return the patient to ○○○○○○○.

B) At the time of 2008, Nonparty 1 had no ability to communicate with the aged of 90 years. The entire right body was math due to the brain from 2006, and both high-level and knenee-level were in a state of being in need of other person’s assistance in the daily life, such as drinking water, frighting, eating, eating, and distribution (hereinafter “instant existing disability”).

C) On August 5, 2008, Defendant 4’s wife Nonparty 2, who is Nonparty 1’s children, entered Nonparty 1 into ○○○○○○○○○○. On September 27, 2008, the ○○○○○○ Institute’s caregiver moved Nonparty 1 to the wheelchairs, and Nonparty 1’s right part of Nonparty 1’s shoulder was faced with a food board (hereinafter “the instant frame”). The instant framework was cut off.

D) On September 28, 2008, the Defendant Welfare Corporation hospitalized Nonparty 1 to the Busan Shipping Daegu Do Council, and planned operation and added it on the framework of this case. However, when the general situation has deteriorated, such as Nonparty 1’s failure to properly provide meals, etc., the Defendant Welfare Corporation’s employee Nonparty 3 moved Nonparty 1 to the emergency room for △△△ Hospital on October 7, 2008. The medical staff at △△ Hospital observed Nonparty 1 on the right right side part of the instant framework, other than the instant framework, and conducted a presumed diagnosis that it is doubtful that it is doubtful that it might be infected, and then hospitalized Nonparty 1 into the patient room. During the blood examination, Nonparty 3 was hospitalized into the patient room. The medical staff at △△△ Hospital took care of Nonparty 1 as an emergency room for △△△△ Hospital. During the process, Nonparty 3 took care of Nonparty 1’s disease, etc., Nonparty 1 was hospitalized into the patient room.

E) From September 12, 2008 to September 12, 2009, Defendant welfare corporation concluded a business liability insurance contract with the insurance period of Hyundai Sea by setting the maximum amount of compensation as KRW 200 million per accident. The Plaintiff claimed expenses incurred in Nonparty 1’s medical treatment at Hyundai Sea. Hyundai Sea decided on October 7, 2008 to February 6, 2009, which is in proximate causal relation with the instant aggregate of the insurance amount of KRW 9,411,450 to the Plaintiff.

F) Nonparty 1 died on May 8, 2010, when receiving treatment at △△ Hospital, as a private person.

2) The facts and records revealed as follows: ① Defendant welfare corporation was obligated to bear medical expenses because Nonparty 1, who was under medical care at ○○○○○○○○○○’s negligence of a caregiver for Defendant welfare corporation, entered the instant framework; ② Defendant welfare corporation was in a situation where the medical expenses were to be borne; ② Defendant welfare corporation planned surgery on the framework of this case, but Nonparty 1 was unable to perform surgery due to the aggravation of the overall condition, such as Non-Party 1’s non-party 1’s failure to provide meals; ② Nonparty 1 appears to have been hospitalized at the hospital for the purpose of preserving the telegraph of Non-Party 1’s general treatment with △△△△ Hospital; ③ at the time, Non-Party 1 did not have a doctor lacking to complete the procedures necessary for hospital treatment, such as the preparation of a written agreement for hospitalization; ④ Defendant 1 and Non-Party 1 did not have any evidence to view that the contract was concluded with the Plaintiff during the process of treating Non-Party 1’s early stage of hospital treatment and concluded with the Plaintiff 1.

However, the content and scope of medical treatment under the medical contract is general and abstract at the time of entering into the medical contract. It is reasonable to view that the scope of treatment by Nonparty 1 under the medical contract entered into between the Plaintiff and the Defendant welfare corporation is not limited to the treatment for the framework of this case, but also includes the treatment for the existing disability of this case, which is the preservation of telegraph necessary for the treatment of the framework of this case, in full view of the circumstance and process of being hospitalized in △△ Hospital (see Supreme Court en banc Decision 2009Da17417, supra).

3) In addition, in relation to the exemption from nursing expenses, Article 4 (4) of the notification (Evidence No. 8) stating that the Plaintiff claimed expenses incurred in the medical treatment of Nonparty 1 to the Defendant welfare foundation, stating that “The Defendant welfare foundation is obligated to pay the Plaintiff the nursing expenses.” However, Article 4 (5) of the same notification also states that the Defendant welfare foundation is obligated to pay the Plaintiff the nursing expenses, and it is difficult to deem that the Plaintiff did not demand the nursing expenses of Nonparty 1 to the Defendant welfare foundation. In addition, in the case of the long-term patient hospitalized as Nonparty 1, it is difficult to view that the Plaintiff agreed not to claim the nursing expenses incurred in the course of hospitalization as Nonparty 1, inasmuch as there is no other ground to view that it is difficult to view the nursing expenses incurred in the long-term hospitalization of the patient as Nonparty 1 as the patient’s medical treatment expenses, the evidence presented by the lower court alone cannot be readily concluded that the Plaintiff agreed not to claim the nursing expenses incurred in the course of hospitalization as Nonparty 1, etc. in the Defendant welfare foundation.

D. Nevertheless, on the grounds indicated in its reasoning, the lower court determined that the Plaintiff entered into a medical contract with Nonparty 1 only with the Defendant’s welfare corporation and agreed not to claim nursing expenses against the Defendant welfare corporation. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, misapprehending the legal doctrine on medical contracts, or failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

2. As to the grounds of appeal against Defendant 2, Defendant 3, and Defendant 4

The Plaintiff’s allegation in this part of the grounds of appeal, that is, “Defendant 2, Defendant 3, and Defendant 4, as Nonparty 1’s guardian, completed the treatment of the instant framework and decided to discharge Nonparty 1 by the doctor in charge of △△△ Hospital on November 208. Since Nonparty 1 continued to be hospitalized in △△ Hospital upon the request of one of his guardian, the medical contract for the existing disability of this case was concluded between the Plaintiff and Nonparty 1’s guardian. Therefore, the Plaintiff’s assertion that “the Plaintiff may claim medical expenses against Defendant 2, Defendant 3, and Defendant 4, who are Nonparty 1’s heir under the medical contract, for the first time in the final appeal, cannot be a legitimate ground of appeal.”

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the part concerning the Defendant welfare corporation among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal against Defendant 2, Defendant 3, and Defendant 4 is dismissed. The costs of appeal between the Plaintiff, Defendant 2, Defendant 3, and Defendant 4 are assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)