[1] Requirements for recognizing a doctor's negligence in a medical malpractice case, and the standard for determining whether a doctor's negligence was negligent

[2] The case holding that there is no occupational negligence on Article 268 of the Criminal Code on the part of the child in charge and the doctor in charge, in case where the mother of the 30th century died from pulmonary mar surgery

[1] In order to recognize a doctor's negligence in a medical malpractice case, it should be recognized that the occurrence of the outcome could have been predicted or avoided, and that it could not be achieved. The determination of the existence of such negligence should be based on the standard of general attention of ordinary persons performing the same duties and duties. In such a case, the level of general medical science at the time of the accident, the medical environment and conditions, and the specificity of medical practice should be considered.

[2] The case holding that there is no occupational negligence on Article 268 of the Criminal Code on the part of the relevant father and doctor in a case where the mother of the 30th century died from pulmonary mar surgery

[1] Article 268 of the Criminal Code / [2] Article 268 of the Criminal Code

[1] Supreme Court Decision 82Do3199 delivered on June 12, 1984 (Gong1984, 1320) Supreme Court Decision 95Do2710 delivered on November 8, 1996 (Gong1996Ha, 3632) Supreme Court Decision 97Do1678 delivered on October 10, 197 (Gong1997Ha, 3531 delivered on November 14, 2003)

Defendant

Defendant

Attorney Jeong Ho-hoon

Daejeon District Court Decision 2002No2035 delivered on January 8, 2004

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance which found the victim guilty of the facts charged in the case where the defendant, who was the father and doctor of the Soyang University Hospital, did not provide necessary medical treatment despite the foreseeable risk of pulmonary lapsing at the above hospital, and caused the victim's death by failing to provide necessary medical treatment.

2. However, we cannot accept the above judgment of the court below.

A. In order to recognize a doctor's negligence in a medical malpractice case, it is necessary to recognize that the occurrence of outcome could have been predicted and could have been avoided (see Supreme Court Decision 82Do3199, Jun. 12, 1984, etc.). The determination of the existence of negligence should be based on the standard of general attention of ordinary persons who perform the same duties and duties, and the standard should be taken into account the level of general medical science at the time of the accident, the medical environment and conditions, and the peculiarity of medical practice (see Supreme Court Decision 95Do2710, Nov. 8, 1996, etc.).

B. The facts charged in the instant case acknowledged that the victim was suffering from her old her first organ who had received the surgery at any time before 5 years prior to the surgery, and complained of the difficulty in pulmonary treatment after the surgery, so the defendant could have predicted the risk of her pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary. In addition, the court below acknowledged the facts charged as follows: (a) the defendant was well aware of such medical knowledge; (b) the pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary pulmonary tion; and (c) the defendant was able to have predicted

However, according to the domestic general science and industry textbooks, etc. attached to the record, waste typhrosis is a non-specific symptoms, signs, various clinical symptoms, and diseases showing symptoms and signs similar to waste chronology symptoms are shaking, and it is true that pregnancy and childbirth are one of the risk factors of the outbreak of waste chronology, and such pulmonal distress or current donations are one of the symptoms and signs that may occur after the operation, and it is difficult to see that there is no possibility of a pulmonary pulmonary pulmonary typhrosis in light of such pulmonary typhrosis or current symptoms that can occur after the operation, and it is extremely difficult to see that there is no possibility of a pulmonary typhropic typhropic typhropic typhropical typhropic typhropical typhropical typhropic typhrosis in light of the fact that there is no possibility of a pulmonary pulmonary tyropic ty.

On the other hand, according to the records of this case, the victim shows an empty, sporadic low voltage, sporadic low pressure, and sporadic symptoms other than the appeal of the victim, following the operation, and as a result of the chlodic gas analysis, while blood alcargrization, and carbon dioxide decrease in blood has been caused, they cannot be viewed as a special opinion on the pulmonary typhrosis, and they cannot be seen as a special opinion on the pulmonary typhe, and as a result, the defendant diagnosed the victim with pulmonary pulmonary typhe and conducted measures therefor. At the time, the defendant diagnosed the victim with pulmonary typhe and diagnosed the victim with pulmonary typhe, and the fact that the defendant was notified of the pulmonary typhe disease before the operation, or is doubtful of pulmonary typology in the chest radiation examination, it cannot be seen that the victim has arrived from the diagnosis radiation and the defendant before the death of the

Therefore, even if the circumstances cited by the court below as the grounds that the defendant could have predicted the victim's certificate of closed color in this case are not recognized by evidence or combined with other recognized circumstances, it is insufficient to affirm the defendant's predictability of the victim's certificate of closed color. As long as the prosecutor bears the burden of proving the facts charged in the criminal trial, the prosecutor cannot be deemed to have proved that the judge has proved the possibility of expectation of the defendant in this case to the extent that there is no reasonable doubt.

C. With respect to the possibility of avoiding pulmonary tyption, the lower court acknowledged that the Defendant was not able to take such measures, even though the Defendant was able to avoid the occurrence of pulmonary tyption by ordering and thoroughly supervising the victim's walking movement, and by administering the typosis, which is an anti-sption agent, and on the other hand, he could not be used for patients with the risk of pulmonary tyption as an anti-sption agent administered to prevent pulmonary tyption, but can be used for 24 hours after the surgery, and the victim could have used the tyption because he was able to use the tyption because he was able to use the tyption due to the tyption during 3 days after the surgery.

However, according to the fact-finding results, etc. on the first instance court and the president of the Korean Medical Association, which did not reject by the lower court, each fact-finding results, etc., where the pulmonary typology was generated and most of the cases led to death before the diagnosis and treatment of the pulmonary typology, so if a patient suspected of having a strong typology, the treatment should begin by immediately administering the typin, which is an anti-scopic anti-scopic system. However, if the typining of the typin to a patient with a typology, there is a risk of an increase in the typology when the typin was injected, and therefore, if the typology continues for 2 to 3 days after the typical operation,

As seen earlier, in the instant case where it is difficult to view that the Defendant could have predicted the victim’s lapsye, it is difficult to impose an obligation on the Defendant to administer the lapsye as an ordinary preventive measure. Furthermore, according to the records, the victim appeared to have been 600, 225, 225, and 90 meters per day for four days following the date of the operation (the victim showed 600,000,000 square meters on the date of the operation, but the victim showed 225, 225, 90,00 square meters on the date of the operation, and 225,25, and 90,000 square meters on the victim’s lapsyeyey, which seems to have been confused with the victim’s lapsye on the day of the operation). After the operation, it is difficult for the Defendant to properly explain or recognize the importance of the victim’s lapsye movement to prevent the occurrence of the lapsye.

D. Therefore, the defendant cannot be deemed to have been negligent on the ground that the defendant did not observe the hedging or did not confirm the implementation of the walking movement after the operation, and even if there were other circumstances to deem that the defendant neglected to take measures to prevent the pulmonary shield, the court below found the defendant guilty on the ground that the court below erred in the misapprehension of legal principles as to doctor's negligence in medical malpractice, such as predictability and avoidance possibility of pulmonary luminous certificate, preventive measures, etc., or in the misapprehension of the rules of evidence against logical and empirical rules or the rules of experience, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

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 Shin Hyun-chul (Presiding Justice)