In a case where a physician’s bodily function is irrecoverablely damaged due to his/her failure to perform his/her duty of care as a good manager, and only the treatment was continued to the extent that the recovery or aggravation of the post-treatment tax is prevented, whether the hospital may claim for the payment of surgery expenses and medical expenses to the patient (negative) and whether such legal principle applies likewise to a case where a patient’s claim for future treatment expenses anticipated to be disbursed after a specific point in time in the previous lawsuit is omitted, resulting in the patient’s omission of future treatment expenses claims expected to be disbursed after a specific point in time in the previous lawsuit

If a physician breached his/her duty of care as a good manager, thereby causing irreparable damage to the patient’s physical function, and only the treatment was continued to the extent that the recovery of the post-treatment tax or the prevention of any further aggravation after the damage, the doctor’s treatment act is not based on the principal place of the medical treatment obligation, or was conducted as a part of the damage, and thus, the hospital cannot claim for the payment of surgery and medical expenses against the patient.

This legal doctrine applies likewise to cases where a patient was able to fully file a claim for future treatment costs anticipated to have been disbursed after a specific point of time in the previous lawsuit, and where the patient actually filed a claim, it would have been naturally accepted as part of active damages, and as a result, the patient omitted the claim for the relevant treatment costs in the previous lawsuit, barring special circumstances, such as where the patient’s claim for a separate lawsuit conflicts with res judicata of the final and conclusive judgment in the previous lawsuit and is not allowed under the Civil Procedure Act, barring special circumstances such as where

Articles 390, 393, 681, 686, and 763 of the Civil Act; Article 216 of the Civil Procedure Act

Supreme Court Decision 92Da15031 Decided July 27, 1993 (Gong1993Ha, 2381) Supreme Court Decision 201Da28939 Decided November 27, 2015 (Gong2016Sang, 13)

Chungcheongnam-nam University Hospital (Law Firm New Law Firm, Attorneys Gangwon-sung et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Sejong, Attorneys Shin Chang-hoon et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2017Na102547 Decided November 22, 2017

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

The grounds of appeal are examined.

1. If a physician breached his/her duty of care as a good manager, thereby undermining the bodily function of the patient in an irrecoverable way, and, after the damage, only the treatment of the patient was conducted to the extent that the recovery of the post-treatment tax or the prevention of any further aggravation thereof was conducted, the doctor’s treatment act is not based on the substance of the medical treatment obligation, or merely was conducted as a part of the damage, and thus, the hospital cannot claim for the payment of surgery and medical expenses against the patient (see, e.g., Supreme Court Decisions 92Da15031, Jul. 27, 1993; 201Da28939, Nov. 27, 2015).

This legal doctrine applies likewise to cases where a patient was able to fully file a claim for future treatment costs anticipated to have been disbursed after a specific point of time in the previous lawsuit, and where such claim had been actually filed, the patient would have been naturally accepted as part of active damages, but the patient failed to file a claim for the relevant treatment costs in the previous lawsuit, barring special circumstances, such as where the patient’s omission of the relevant claim in the previous lawsuit would violate res judicata effect in the final and conclusive judgment of the previous lawsuit and thus is not permitted under the Civil Procedure Act, barring special circumstances such as where

2. The reasoning of the lower judgment and the record reveal the following facts.

A. The primary medical lawsuit

1) Around May 198, Defendant 1 received surgery and treatment from the medical personnel affiliated with the Plaintiff, and subsequently, as a result of the negligence of the above medical personnel, Defendant 1 and his children, Nonparty 1, and Nonparty 2 (hereinafter “Defendant 1, etc.”) filed a lawsuit against the Plaintiff for damages against the Defendants.

2) On January 17, 2003, the appellate court (Seoul High Court Decision 2000Na6368) recognized the Plaintiff’s medical malpractice. On the premise that Defendant 1’s female life is presumed to be April 23, 2004 (4.43 years for life expectancy), the appellate court rendered a judgment that recognized the Plaintiff’s liability for damages by calculating the amount of lost income, future treatment expenses, nursing expenses, consolation money, etc. for the life expectancy. The said appellate judgment was finalized on July 25, 2003 by Supreme Court Decision 2003Da10261.

B. The second medical lawsuit

1) As Defendant 1’s survival after the life-sustaining period anticipated in the first medical lawsuit, Defendant 1 et al. filed a claim against the Plaintiff on April 27, 2004 for additional damages incurred by Defendant 1’s survival beyond the initially predicted life-sustaining period.

2) The appellate court (Seoul High Court Daejeon High Court 2005Na2972) recognized Defendant 1’s remaining life on October 18, 2006 as up to June 14, 2012 ( maximum of 8.4 years of life expectancy), and recognized additional damages, such as future treatment costs until June 14, 2012, and nursing costs, until September 28, 2037, on condition of Defendant 1’s survival. The judgment of the appellate court became final and conclusive as Supreme Court Decision 2006Da78640 on April 13, 207.

3) In the above lawsuit, Defendant 1, etc. claimed expenses expected to occur until September 28, 2037, taking into account the average remaining life expectancy of the Korean average women in the future, while in the case of future treatment costs, Defendant 1, etc. claimed only the costs anticipated to occur until December 31, 2012, considering that the upper limit of life expectancy of Defendant 1, which was recognized as the result of appraisal, was 8.4 years.

C. The third medical lawsuit

1) Defendant 1 still remains alive after the life-sustaining period in which the second medical lawsuit was anticipated, and Defendant 1 filed a claim against the Plaintiff on February 11, 2014 for additional damages incurred by Defendant 1’s remaining life beyond the initially predicted life-sustaining period.

2) The appellate court (Seoul High Court Daejeon High Court 2014Na12506) partially accepted Defendant 1’s passive claim for damages (living cost) on March 20, 2015, but rejected Defendant 1’s active claim for damages, such as the future treatment cost claim after July 10, 2014, deeming that such claim contradicts the res judicata effect of the second medical lawsuit. The said appellate judgment became final and conclusive by Supreme Court Decision 2015Da212008.

D. Grounds for the instant claim

The Plaintiff filed the instant claim on the ground that the Defendants did not pay KRW 9,806,120 for medical expenses incurred from January 1, 2015 to December 31, 2015, although Defendant 1 continued hospitalized treatment.

3. Examining the above facts and the progress of the lawsuit in light of the legal principles as seen earlier, the following is determined.

A. It is evident that Defendant 1 was able to claim medical expenses, etc. anticipated to be incurred after 2013 in the second medical lawsuit, and it would have been cited on the condition of Defendant 1’s survival if it was actually claimed.

B. Nevertheless, even if Defendant 1 did not claim medical expenses, etc. anticipated to be incurred after 2013 in the second medical lawsuit and claiming them in a separate lawsuit by Defendant 1 contradicts res judicata of the final and conclusive judgment of the second medical lawsuit, and thus, is not allowed under the Civil Procedure Act, the pertinent claim, etc. is not extinguished under the substantive law.

C. In the instant case where Defendant 1 received reimbursement of the medical expenses incurred after 2013 from the Plaintiff or Defendant 1 renounced the pertinent claim, it is reasonable to view that the Plaintiff’s treatment of Defendant 1 is still a mere compensating for damages incurred to Defendant 1 due to the negligence of the medical personnel belonging to the Plaintiff. Therefore, the Plaintiff cannot claim against the Defendants payment of the medical expenses incurred after 2013.

4. Nevertheless, the lower court determined otherwise, on the ground that the active damages that the Plaintiff is liable for damages against Defendant 1 were compensated by the determination of future treatment expenses, etc. calculated by June 14, 2012 as well as the nursing expenses, etc. to be paid on a regular basis by September 28, 2037, the lower court determined that the medical expenses the Plaintiff claimed in the instant case did not constitute compensating the Plaintiff for damages caused by the Plaintiff’s tort against Defendant 1. In so doing, the lower court erred by misapprehending the judgment contrary to the precedents of the Supreme Court under Article 3 subparag. 2 of the Trial of Small Claims Act. The allegation contained in the grounds of appeal on this point is with merit.

5. 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 Park Sang-ok (Presiding Justice)