[1] In a claim for damages caused by medical malpractice, the degree of the burden of proof to presume the causal relationship between the medical malpractice and the result, and the burden of proof as to the existence of medical malpractice (=victim)

[2] Standard for determining whether a doctor was negligent in choosing the method of medical treatment

[3] Whether it can be presumed that the symptoms involved are based on medical negligence by proving indirect facts that cannot be deemed as having any other reason than medical negligence with respect to the occurrence of the symptoms in question (affirmative), and in such cases, whether a doctor may bear the burden of proof without negligence (negative)

[4] The standard for determining whether there is a presumption of medical negligence in the event of a subsequent disability caused by medical practice

[5] In a case where Party A was diagnosed by Party B as having a high possibility of permanent continuation after undergoing the surgery on the celethical scopical signboard from Party B, the case holding that Party B’s medical negligence cannot be presumed solely on the ground that Party B’s choice to perform the above surgery cannot be deemed to exceed the reasonable scope of discretion recognized by the doctor, and that there was a legacy

[1] In a claim for damages due to medical malpractice, in cases where it is proved that an act, which was low in the course of medical practice, was proven in light of ordinary people’s common sense, and that any cause other than the medical practice can not be discovered, the burden of proving the causal relationship between the medical negligence and the result is mitigated so as to impose liability for damages by estimating the causal relationship between the medical negligence and the result. However, even in such cases, the existence of medical negligence is proved by the victim, and if it is denied that there was a breach of duty of care

[2] A doctor may choose the method of medical treatment that is deemed appropriate according to the patient’s situation, the level of medical care at the time, and his/her professional knowledge and experience while providing medical treatment. Unless it exceeds the reasonable scope of discretion, only one of the results of medical treatment shall not be deemed to be justified and there is no fault in taking other measures.

[3] As an area requiring highly specialized knowledge, it is difficult for a general person, who is not an expert, not an expert, to clarify whether he/she has violated the duty of care in the medical process or whether there exists a causal link between the violation of the duty of care and the loss. Therefore, it may be presumed that the symptoms in question are based on medical negligence by proving indirect facts that it is difficult to deem any other reason than medical negligence with respect to the occurrence of symptoms in question. However, even in such a case, the burden of proof is not allowed for a doctor to bear the burden of negligence by presumptioning the causal relationship between the doctor’s negligence and the result of gross negligence with the circumstance where the probability to presume the occurrence of the symptoms in question

[4] In the event of a subsequent disability caused by medical practice, if the disability can be caused by a combination of medical practice processes or may be caused secondaryly by such combination, it cannot be presumed that the symptoms were generally recognized as beyond the scope of a complication, in full view of the content of medical practice, the medical procedure, the degree and degree of the occurrence of the complication, the medical level at the time, and the degree of the medical staff in charge, etc., unless the symptoms were deemed to have exceeded the scope of a complication, solely on the fact that the subsequent disability occurred cannot be presumed to have been negligent in the medical process.

[5] The case holding that the court below erred in misapprehending the legal principle and its duty of care can be acknowledged as a medical malpractice in light of the medical record appraisal result, etc., on the ground that, in a case where Gap received a diagnosis from Eul that the “defluence and dynamic conditions” might continue permanently, it cannot be deemed that Eul’s emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative emulative e was an overall e.

[1] Article 750 of the Civil Act, Articles 202 and 288 of the Civil Procedure Act / [2] Article 750 of the Civil Act / [3] Article 750 of the Civil Act, Articles 202 and 288 of the Civil Procedure Act / [4] Article 750 of the Civil Act / [5] Article 750 of the Civil Act

[1] [2] Supreme Court Decision 2009Da101916 Decided July 14, 201 / [1] Supreme Court Decision 93Da52402 Decided February 10, 1995 (Gong1995Sang, 1281) Supreme Court Decision 99Da10479 Decided September 3, 199 (Gong199Ha, 2032) / [2] [3] Supreme Court Decision 2005Da5867 Decided May 31, 2007 (Gong2007Ha, 949) / [3] Supreme Court Decision 2002Da45185 Decided October 28, 2004 (Gong2004Ha, 1929) / [207Da1208164 decided April 16, 2015]

Plaintiff 1 and one other (Attorney Yang Sung-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon Byung-nam et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2021634 decided December 8, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Basic factual basis

According to the reasoning of the lower judgment, the following facts are acknowledged.

A. On July 6, 2013, the Defendant extended 4-5 conical signboards to Plaintiff 1 on July 6, 2013, and thereafter performed drilling and artificial disc insertion, and removal of conical signboards and artificial disc driveing (hereinafter “instant surgery”). After the instant surgery, Plaintiff 1 was diagnosed as having a high possibility of permanent continuation of “assessment and dynamic conditions” after the instant surgery, and accordingly was diagnosed as having been in a state of adaptability to daily life, such as emotional problems and WIG disorders. Plaintiff 2 was the wife of Plaintiff 1.

B. The instant case held that: (a) the ebrate ebrate ebrate ebrate surgery (hereinafter “ebrate ebrate surgery”) is performed by cutting off the body of a person; (b) the ebrate ebrate ebrate ebrates are damaged by the ebrate ebrates and the ebrate ebrates, which are distributed to the ebrates and alleys; and (c) the ebrate ebrates from the ebrate ebrates are distributed to the ebrate ebrates, in particular, to the male in cases where the ebial ebial ebromers are damaged by the ebrate ebrates; (d) the reverse ebrate ebrate ebrates in the ebrate surgery were damaged by the ebrate ebron ebron ebron ebron eculation; and (d) the instant e.

2. Lower judgment

For the following reasons, the lower court determined that: (a) the dynamic state, circumstantial disability, and adaptation disorder left for Plaintiff 1 due to the instant surgery was attributable to the Defendant’s fault in performing the surgery and failing to fulfill his/her duty of care; and (b) thereby, was liable to compensate the Plaintiffs for the damages incurred therefrom.

Plaintiff 1 was a young male at the age of 35 at the time of the instant surgery and did not have the ability to be a cause of epidemism before the instant surgery. The instant surgery is related to the astronomical ethma, and most of the causes of functional disorder in the eth part of the eth part of the eth part of the surgery are nethic damage during the surgery. In order to prevent nethic damage in the ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic ethic

The epidemiologic circumstances do not occur in the latter, and even if there are no circumstances that make it difficult for the Plaintiff 1 to perform the latter, the latter choice was made. Even if the doctor’s reasonable discretion exists in the choice of the latter, the Defendant should have performed a surgery more carefully since the risk of epidemiologic damage exists that may cause epidemiologic conditions different from the latter.

However, there is no evidence to acknowledge that Plaintiff 1’s psychotropic disorder was abnormally distributed in the course of the surgery. The dynamic circumstance is one of the mergers that may arise after the surgery of this case, but the frequency of occurrence is considerably low to approximately 0.42% in 1984 and approximately 5.9% in 195, and in particular, even for patients suffering from epidemiologic disorder, it is difficult to readily conclude that Plaintiff 1’s epidemiologic disorder is a merger certificate that can normally occur during the surgery of this case.

3. Supreme Court Decision

A. In a claim for damages due to medical malpractice, in cases where it is proved that the act, which was low in the course of medical practice, was proven that there was no other cause than the medical practice in light of the ordinary person’s common sense and the result thereof, the Supreme Court has established a precedent to alleviate the burden of proof so that the causal link between the medical malpractice and the result can be presumed and liable for damages (see, e.g., Supreme Court Decision 93Da52402, Feb. 10, 1995). However, even in this case, the existence of medical malpractice is proved by the victim, and if it is denied that there was a breach of duty of care during the medical process, the claim is dismissed (see, e.g., Supreme Court Decisions 9Da10479, Sept. 3, 199; 2009Da101916, Jul. 14, 2011).

On the other hand, a doctor may choose the method of medical treatment deemed appropriate based on the patient’s situation, the level of medical care at the time, and his/her professional knowledge and experience while providing medical treatment. Unless it exceeds the reasonable scope of discretion, only one of the results of medical treatment shall be deemed lawful and not be deemed to be negligent in taking any other measure (see Supreme Court Decision 2005Da5867, May 31, 2007, etc.).

Medical practice is an area requiring highly specialized knowledge, and it is very difficult to find out whether there exists a violation of the duty of care in the medical process or a causal relationship between a violation of the duty of care and a loss. Therefore, it may be presumed that the symptoms at issue were based on medical negligence by proving indirect facts other than medical negligence with respect to the occurrence of the symptoms at issue. However, even in such a case, it is difficult to presume that such symptoms were based on medical negligence with the circumstance where it is difficult to presume the occurrence of the symptoms at issue as a result of the doctor’s negligence and the causal relationship with the doctor’s negligence, resulting in the presumption of causation with the doctor’s negligence, and thus, it is not allowed to impose the burden of proof without fault on the doctor (see Supreme Court Decision 2002Da45185, Oct. 28, 2004, etc.). In such a case, if the subsequent disability was caused by medical practice at the medical level at which the subsequent disability was caused by the merger of medical practice at the time, or if it can be deemed that the subsequent disability was caused by a combination of 2070.

B. Examining the factual basis and the record of the instant case in light of the foregoing legal doctrine, the following determination is possible.

(1) Even according to the reasoning of the judgment below, the Defendant’s choice of an operation via an operation cannot be deemed to exceed the bounds of reasonable discretion recognized by the doctor, and thus, it cannot be recognized that the Defendant violated the duty of care. The lower court deemed that the Defendant neglected to take preventive measures against psychotropic damage on the premise that the Defendant used the instant operation to prevent boom damage in the instant operation, but it is merely a tool for booming, and it is difficult to view that the Defendant used it in booming. Moreover, the circumstances indicated by the lower court are difficult to be deemed as grounds to recognize the Defendant’s breach of the duty of care.

(2) Even if it is deemed that the symptoms were caused by the damage to the superior vice-principal and the epidemary gun during the instant surgery, and that such damage was caused by the epidemal disorder, the Defendant’s medical negligence cannot be presumed. In light of the result of the first instance court’s medical record appraisal, etc., there is room to view Plaintiff 1’s damage to the superior vice-principal and the epidemary gun during the epidemary surgery as a generally accepted merger certificate. The circumstances cited by the lower court are not sufficient grounds for excluding the possibility of such inevitable damage, and it is difficult to view that the circumstances are likely to have a degree of presumption of the Defendant’s medical negligence.

The lower court should have determined whether the Defendant’s medical malpractice was presumed beyond the scope of the merger certificate generally recognized during the instant surgery, by examining the following: (a) the damage to superior sub-principal, vice-principal, and the epidemism; (b) the specific content of the duty of care required for the Defendant to prevent psychotropic damage; (c) whether the Defendant failed to comply with such duty of care; (d) whether the Defendant can confirm it with the me in light of the location and size of damaged psychotropic; and (e) whether the Defendant could prevent psychotropic damage if she complied with such duty of care.

C. Nevertheless, without examining these circumstances, the lower court acknowledged the Defendant’s medical negligence and thereby, acknowledged Plaintiff 1’s medical negligence, and thereby, acknowledged the liability for damages. In so doing, the lower court erred by misapprehending the legal doctrine on the burden of proof and presumption of causation in a medical lawsuit, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

The Defendant’s appeal is with merit without examining the remaining grounds of appeal, and the part against the Defendant is reversed, and that part of 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 Lee Dong-won (Presiding Justice)