2017 Gohap 528191 Compensation (Definition)

1. A;

2. B

3. C

[Judgment of the court below]

Attorney Cho Jin-kin

School Foundation D

[Plaintiff-Appellant] Plaintiff 1 et al.

Attorney Kim Yong-ok

1. E;

2. F;

3. G.

[Judgment of the court below]

Attorney Yoon Tae-tae, Counsel for the plaintiff-appellant

April 9, 2019

May 28, 2019

1. The Defendants jointly pay to Plaintiff A 403,830,957 won, Plaintiff B, and C 13,000,000 won each of the above amounts, and 5% per annum from September 8, 2016 to May 28, 2019, and 15% per annum from the next day to the date of full payment.

2. Each of the plaintiffs' remaining claims is dismissed.

3. 1/5 of the costs of lawsuit is assessed against the Plaintiffs, and the remainder is assessed against the Defendants.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly pay to Plaintiff A 495,207,276 won, Plaintiff B, and C 20,000,000 won each of the above amounts, with 5% interest per annum from September 8, 2016 to the service date of a copy of the application for modification of the purport of the instant claim and the cause of the claim, and 15% interest per annum from the next day to the date of full payment.

1. Facts of recognition;

A. Status of the parties

1) Plaintiff B and C are parents of H (the deceased on October 26, 2016; hereinafter “the deceased”) and Plaintiff A is punished by the deceased.

2) Defendant E is a professional of sexual outdoor medicine who operates the J Sung-gu Seoul Seocho-gu Seoul Building 13 as the 13rd E’s sexual outdoor medicine clinic (hereinafter “Defendant Council member”). Defendant F and G are the doctors affiliated with Defendant Council members.

B. Progress from the instant surgery and electric power supply

1) On August 26, 2016, the Deceased decided to undergo the said surgery after consultation with the Defendant’s Council member on an internal leapment surgery. Medical personnel at the Defendant Hospital did not have any particular opinion on the blood coagument test to the Deceased on the day of the examination.

2) On September 8, 209:55 of the same year, the Deceased was released from the Defendant Council for the purpose of an internal leapment surgery. Around 12:30 of the same day, Defendant F, a medical specialist, commenced anesthesia to the Deceased (at the time of the operation, scambling, etc.), and Defendant E, from around 12:56 of the same day to 13:59 of the same day, she scam reduction and scambling (hereinafter “the instant operation”). During that process, a large quantity of alcohol was generated.

3) From 14:00 on the same day, Defendant G screened the part of the instant surgery and finished the surgery at around 16:43 on the same day (However, the blood pressure of the deceased, especially during the mouth, continued without stopping at the part of the instant surgery, and the assistant nurse belonging to the Defendant G or the Defendant G, who received the instructions from the Defendant G, continued to take the blood transfusion in shift. Thereafter, the Defendant G was feld with the parts of the instant surgery from 15:45 on the same day to 16:15 on the same day, and around 16:28 on the same day, the Defendant E was flading the roof on the part of the instant surgery and finished the surgery at around 16:43 on the same day (However, it is the situation where the blood pressure of the deceased during the mouth continues to continue to do so), and confirmed the condition of the deceased’s blood pressure at the time of the operation to 17:30 on the completion of the surgery, and confirmed the state of the deceased’s blood pressure at low level.

4) Meanwhile, at around 18:30 on the same day, the Deceased was broken out in anesthesia, and thereafter blood pressure and beer, as follows.2)

○ 18:30 : Blood pressure (mHg), 105/67, Mabling (g/ minute) 111

○ 19:00 Blood pressure (mHg), 104/58, Mabling (g/ minute) 119

○ 19:30 : Blood pressure (mHg), 105/66, Mabling (g/ minute) 130

○ 20 20: Blood pressure (mHg), 107/67, Mabling (g/ minute) 130

○ 21:00 GmHg) : Blood pressure (mHg) 78/66, Mabling (g/ minute) 146

○ 22:00 Blood pressure (mHg), 91/63, Mabling (g/ minute) 134

5) At around 22:40, Defendant F, at around 22:40, took measures such as administering the amount of money after arrival of the Defendant Council member and inserting the uriline, and observed the progress.

6) After the arrival of Defendant E at around 23:17 on the same day, Defendant E determined to transfer to a higher hospital, and requested a first-aid vehicle to the 119 Safety Center around 23:27 on the same day. Around 23:37 on the same day, the 119 rescue team arrived at the Defendant Council member and started the site where the deceased was on board the first-aid vehicle at around 23:43 on the same day, and arrived at the D Hospital at around 23:54 on the same day.

7) Meanwhile, although the blood requested by Defendant Council members for blood transfusion at around 23:29, Defendant E and F did not take measures, such as blood transfusion, separately from the deceased. During the instant operation, the 3500cc amount of blood transfusions of the Deceased was 3500cc. The Defendants treated the Deceased at least 500cc and pentags (blood substitute) up to the time when the electric power resource was taken.

C. Progress after the power generation

1) On September 9, 2016, the Deceased moved to an emergency room of the Intervenor hospital in a state of 00:00,000, the Deceased was in a state of her face and part of the body at the time of the inside of the hospital, and where her face and part of the body are serious, and her he/she continued blood transfusion in the mouth, and where her part of the operation was inserted into the draft. In addition, the active draft was in a state of low blood pressure of 80/50mHg at the time, and 150 times/hick.

2) On 00:36 of the same day when the medical professionals in the Intervenor Hospital were in preparation for blood transfusion, central beer insertion, and (a) the deceased was placed in the engine rhetoral surgery, and the medical professionals in the Intervenor Hospital immediately implemented cardiopulmonary resuscitation surgery at around 00:38 on the same day. After the implementation of the measures for blood transfusion, the medical professionals in the said hospital performed preservation treatment by transferring the deceased to the hospital room, but as a result, the deceased showed opinions such as cerebral side, liver brain damage, chronopic chronology, and chronical chronology, etc., and on October 25, 10 of the same year, the death had re-explosiond around the same day.

3) At around October 26, 2016, 207:23, the Deceased died due to the heart failure to complete recovery despite the treatment of the medical staff of the Intervenor hospital.

[Ground of recognition] The facts without dispute, Gap's statements or images of Gap's evidence 1 to 5 (including each number), the L Hospital Head of this Court, and the result of each medical record appraisal of K Hospital Head of K Hospital (hereinafter "the result of the appraisal of this case"), the purport of the whole pleadings

2. Occurrence of liability for damages;

A. Grounds for liability

1) Violation of duty of care

A physician has the duty of care to take the best measures required to prevent risks depending on the patient’s specific symptoms or circumstances in light of the nature of the duties of managing the patient’s life and body health, and such duty of care is based on the level of medical practice performed in the clinical medicine field, such as medical institutions, at the time of performing the medical practice. The level of medical care refers to the so-called medical awareness generally known and recognized and recognized at the time of the medical practice. Thus, it ought to be identified at a normative level in light of the environment and conditions of medical treatment, special characteristics of the medical practice, etc. (see, e.g., Supreme Court Decisions 98Da45379, Apr. 79, 45386, Mar. 26, 1999; 2005; 2004Da13045, Oct. 28, 201; 2009Da45146, Nov. 1, 2011).

According to the above facts, given that considerable blood pressure and low blood pressure have occurred during the instant surgery, the Defendants, especially Defendant F, a medical specialist in anesthesia, need to carefully monitor the deceased’s heart level, blood pressure, beer, and blood pressure (e.g., at the rate of appearance, the possibility of blood transfusion, etc.) and present an example.

In particular, since an empty beer has deepened around 19:30 on September 8, 2016 and an empty has increased to 130 times per minute, it is necessary to recognize that it is in a state of insufficient circular blood quantity and increase the water supply. Moreover, even though there was an increase in water supply by 20:00 on the same day, the degree of an empty blood should be avoided by checking the amount of urine, checking the amount of flaging, checking the amount of flag, and conducting blood tests. However, even if there was no particular call, and even if the degree of an empty blood has been depthd, preparation for blood transfusion should be made (the result of the instant appraisal).

In addition, the continuous blood or mass blood transfusions for a long time may cause low blood shocks, and therefore the Defendants need to find out the cause of blood transfusions and the part of blood transfusions rapidly.5) Furthermore, the Deceased appears to have been in need of prompt blood transfusions because he/she continued to have a considerable amount of blood transfusions during the operation, and in particular, if he/she reached a state of at least 21:00 square meters, he/she would have to start blood transfusions or take measures so that all of it would be done soon if it is not done (i.e., the blood dose during the instant operation, and the problem of blood transfusions has not been resolved several times, so it is necessary to promptly take measures such as examination and blood transfusions, dives insertion, and electric power generations to superior hospitals during the operation (the result of the instant appraisal) / [The result of the instant appraisal]

Nevertheless, the Defendants were negligent in failing to properly observe the progress of the deceased’s blood dose, sulve, etc., and to take measures for blood transfusion and blood transfusion in violation of the duty of care required for the doctor. In particular, the Defendants taken measures for electric power generation in the state that blood for blood transfusion was able to take measures for electric power generation upon arrival of the Defendant Council member, but without taking such measures. The deceased’s negligence was placed in the low blood shock shock, and the state of the deceased’s condition was not recovered, and eventually deepened and died.

As to this, the Defendants did not have a causal relationship between the deceased’s death and the medical practice of the Defendant Council member, and rather, the deceased’s death was caused by the occurrence of air fluences caused by repeated insertingment of the central beer, at the Intervenor hospital, by the death of the deceased. However, there is no evidence to acknowledge this, the above assertion is without merit.

2) Breach of duty of explanation

In general, when a doctor performs a medical act that is highly likely to cause an adverse consequence, such as surgery, etc. to a patient, or performs a medical act that is predicted as a result of death, etc., he/she is obligated to explain the relevant patient or his/her legal representative on the premise that he/she or his/her legal representative is required to obtain consent to an obligation under a medical contract or an invasion, etc., unless there are other special circumstances, in cases where the relevant patient or his/her legal representative is involved in a medical act that is anticipated to cause an adverse consequence, in light of the level of medical care at the time when the patient's symptoms, treatment method and necessity, anticipated risk, etc. are reasonably compared to the necessity or risk of the relevant medical act and make it possible to choose whether to receive the relevant medical act after sufficiently comparing the relevant patient's necessity or risk. The doctor's duty to explain cannot be exempted solely on the ground that there is a little possibility of danger such as post-treatment or side effects, etc. in the relevant medical act. In cases where post-treatment or side effect is critical, it shall be subject to explanation notwithstanding the possibility of occurrence (see, etc.

Meanwhile, in light of the importance of the duty to explain as a procedural measure that is essential to a doctor in the course of going back to an inception medical practice, it seems that at least a doctor needs to preserve the content explained to the patient in light of the importance of the duty. Furthermore, according to Article 9 of the Emergency Medical Service Act and Article 3 and 1 of the Enforcement Rule of the same Act / [Form] of the Emergency Medical Service Act, in the case of an urgent emergency medical treatment compared to ordinary medical practice, the legal obligation to explain the necessity of the medical practice, the content of the medical practice, the risks of the medical practice, etc. and to obtain written consent in document documentation is imposed on the medical worker. While it is very easy for the doctor to prove the performance of the duty to explain by such document, it is extremely difficult for the doctor to prove that the patient has not performed the duty to explain, barring any special circumstances, to interpret that there is a burden of proof to perform the duty to explain on the patient's side of the duty to explain is consistent with the demand for fairness of damages and the interpretation of the legal system.

In light of the above legal principles, the instant surgery is an operation using a saw for medical treatment and can be accompanied by mass-explosion in the process. As such, Defendant E shall fully explain the risk before the surgery to the deceased before the surgery, and make it possible for the deceased to choose whether to undergo the instant surgery by sufficiently comparing the necessity and risk. There is no evidence to acknowledge that Defendant E specifically explained the risk, etc. to the deceased in performing the instant surgery.

3) Sub-decisions

Therefore, even though the Defendants were aware that mass transfusion occurred in the course of the instant surgery, they failed to observe the progress of the deceased’s blood transfusion, active surgery, etc. and to take measures for blood transfusion and blood transfusion in violation of the duty of care required for the deceased, and were negligent in failing to perform the duty of explanation to the deceased, the Defendants are liable to compensate for damages caused by the death of the deceased.

B. Limitation on liability

However, in full view of the circumstances surrounding the deceased’s internal source, the purpose and contents of the instant surgery, and the progress before and after the measure of electric power resource, imposing all the damages incurred from the instant surgery on the Defendants is contrary to the principle of equity. Considering the aforementioned circumstances in calculating the amount of damages that the Defendants should compensate for, it is also consistent with the ideology of the damage compensation system that provides guidance on the fair and reasonable sharing of damages. Therefore, in calculating the amount of damages that the Defendants should compensate, it shall be taken into account in calculating the amount of damages that the Defendants should compensate, but the scope of the damages liability shall be limited to 80%.

3. Scope of liability for damages

A. Loss (negative loss)

(i) the facts of recognition and evaluation;

(a) Date of birth and gender: Gender; and

(B) Age and life expectancy: 24 years of age and 11 months of age at the time of the instant surgery (the life expectancy 5.84, 55.84);

C) Maximum working age and operating days: From the date of the instant accident to the date of 65 years of age, the maximum working age shall be deemed 22 days per month.

(d) Employment and income: Wages of ordinary workers engaged in urban daily work;

(e) Cost of living: 1/3 of the deceased’s income;

(ii) the computation of the present price;

The amount of damages equivalent to the lost income that the deceased suffered from the accident of this case shall be calculated at the rate of 5 percent per month based on the facts of the recognition and the contents of the evaluation as above, and pursuant to the method of separation which deducts the intermediary interest calculated at the rate of 5 percent per month as of the date of death of the deceased, it shall be the sum of 436,038,697 won as shown in the following calculation table.

【Real Income】

A person shall be appointed.

B. Limitation on liability

348,830,957 won (=436,038,697 won x 80%)

(c) Consolation money (with the previous consideration of all the circumstances);

(a) Deceased: 50 million won;

2) Plaintiff B and C: each of KRW 13 million

3) Plaintiff A: 5 million won

(d) Inheritance relationship; and

The plaintiff B and C renounced the deceased's property inheritance [A evidence 7], and the plaintiff A succeeded to all the rights to claim damages of the deceased.

E. Sub-committee

Therefore, the Defendants jointly have the obligation to pay the Plaintiff KRW 403,830,957 for damages (i.e., KRW 348,830,957 for the deceased’s property damage + KRW 50 million for consolation money + KRW 50,000 for consolation money + KRW 50,000 for the deceased), KRW 13 million for damages (defensive money) to the Plaintiff B and C, and each of the above amounts, as to the existence or scope of the Defendants’ obligations from September 8, 2016, which is the date of the instant operation, to May 28, 2019, which is deemed reasonable for the Defendants to dispute on the existence or scope of their obligations, 5% per annum under the Civil Act, and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiffs' claims are accepted within the scope of each of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jae-nam of the presiding judge

Judges subordinate to the lower rank

Judges Kim Jong-Gyeong

1) Using a saw (saw) for medical treatment to well cover the bones planned.

2) From the point of 19:00 to the point of 19:00, the symptoms that may occur congested after anesthesia. Thus, until this time, the deceased’s life and body symptoms are unique. However, from the point of 19:30 to the point of 130 times per minute 130 times can be suspected as a reaction due to a decrease in cardiopulmonary resuscitation, and the symptoms that rapidly low-tension and frequently deepened tensions can be seen as a “low-blood shock.” A small number of 22:0 to the point of view on the request for the appraisal of medical records appears to have the effect of hydropulmonary injection [the result of the response of the K Hospital head on June 14, 2018 at the request for the appraisal of medical records in this Court]

3) The direct cause appears to be a low-blood shock from continuous blood transfusion (the result of the K Hospital's response to April 23, 2018 by the K Hospital president of the K Hospital on the request for the examination of medical records of this Court). In addition, it was accompanied by the instrument problems, such as side species and skins, etc. due to the continuation of the blood from the part of the operation beyond the road, and such person was also affected (the result of this court's response to the request for the examination of medical records as of September 21, 2018 by the L Hospital president of the L Hospital on the request for the examination of medical records).

4) The blood volume is reduced due to blood transfusions, which causes shocks by reducing the amount of blood stuffed and organized by reducing the amount of blood stuffed.

5) Although it is true that an operation cutting the bones would have been done on the bones side of the bones, so it has a large amount of blood transfusion compared to that of other cosmetic surgery, if it exceeds the general blood transfusion, it would be necessary to find and resolve the cause by considering other causes of blood transfusion in addition to the maternal blood transfusion.

【Evaluation Results of the instant case】