2013Da33485 Compensation (Definition)

1. A;

2. B

3. C

4. D;

Plaintiff 3 and 4 are respective minors, and the legal representative B and A

1. E;

2. F;

3. G.

Busan High Court Decision 2012Na3975 Decided April 4, 2013

July 9, 2015

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

The plaintiffs' remaining appeals are dismissed.

The costs of appeal between the Plaintiffs, Defendant F, and G are assessed against the Plaintiffs.

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

1. As to the ground of appeal alleging excessive interruptions and negligence in past observation

A. When a doctor provides medical treatment, he/she shall have the reasonable discretion to choose the method of medical treatment as deemed appropriate based on the patient’s situation, the current medical level, and his/her knowledge and experience. Unless it goes beyond the reasonable scope, only one of them is justified and it cannot be said that any other measure is negligence (see, e.g., Supreme Court Decision 2005Da5867, May 31, 2007).

In addition, since medical practice is an area requiring highly specialized knowledge and it is very difficult for a general person, who is not an expert, to clarify whether a doctor has violated the duty of care in the course of medical practice, or whether there exists causation between a doctor’s breach of duty of care and the occurrence of damage, it is also possible to presume that the symptoms are based on medical negligence by proving indirect facts that there are other causes than medical negligence in regard to the occurrence of symptoms after medical practice. However, even in such a case, it is not allowed to bear the burden of proof of negligence against a doctor by presumptioning the causal relationship with a doctor’s negligence in a very serious consequence with circumstances where there is no probability to presume the occurrence of a result from a doctor’s negligence (see, e.g., Supreme Court Decisions 2002Da45185, Oct. 28, 2004; 2005Da5867, May 31, 2007).

The court shall determine whether the assertion is true in accordance with logical and empirical rules on the basis of the ideology of social justice and equity by free evaluation of evidence, taking into account the overall purport of pleadings and the result of examination of evidence (Article 202 of the Civil Procedure Act). The facts duly confirmed by the judgment of the court below that did not go beyond the bounds of the principle of free evaluation of evidence, are binding on the Re-appeal Court (Article 432 of the same Act). (b) The court below, citing the reasoning of the judgment of the court of first instance and, in addition to the reasons stated in its reasoning, there is no evidence to find that Defendant E caused excessive blood transfusion by carefully cutting off the part of Plaintiff A beyond necessary, and (2) it is difficult to find that the Defendants did not take appropriate measures against the aftermacy of Plaintiff A, and there is insufficient reason to recognize that the nursing record was forged

C. The ground of appeal disputing such judgment of the court below is practically the fact-finding court.

In addition, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or by failing to exhaust all necessary deliberations, despite examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted.

2. As to the ground of appeal alleging the violation of the duty of electric power resource or explanation

(a) When a physician provides medical services, such as diagnosis and treatment, the level of medical practice performed in the field of clinical medicine such as medical institutions at the time of performing the medical practice is based on the patient’s specific symptoms or circumstances, in light of the nature of the duties of managing human life, body,

The best measures required to prevent danger shall be taken, and if there are circumstances that make it difficult for a patient to provide appropriate treatment or take such measures, measures shall be taken to transfer the patient to another hospital that is able to provide technical treatment (see, e.g., Supreme Court Decision 2006Da41327, Dec. 21, 2006). In such a case, a doctor shall promptly explain specific symptoms of the patient, necessity of all of the patient, anticipated risks if not all of the patient are not provided, to the patient or his/her legal representative, etc. in light of the medical standards at the time, so that the patient can choose whether to take care of another hospital by sufficiently comparing the need or risk. In addition, civil liability and criminal liability arising from medical malpractice shall be different principles from one another, such as guidance ideology, burden of proof, etc., and thus, a doctor cannot be deemed to have been provided with a duty to explain and notify 200 (see, e.g., Supreme Court Decision 2015Da2081781, supra.).

B. The court below cited the reasoning of the judgment of the court of first instance, and added the reasons in its reasoning, it is difficult to view that around September 25, 2008, 21:20, Defendant E had a duty of care to determine all of the Plaintiff to be a superior hospital without harming any other treatment methods to prevent the Plaintiff from blood transfusion and blood transfusion. (B) The Plaintiff’s side part of the Plaintiff’s blood transfusion did not easily find the womb even after the restriction, so even if the time for all of the Plaintiff changed, the injury caused by the Plaintiff’s self-determination and excessive blood transfusion could not be avoided. Thus, the injury of the Plaintiff was related to matters not related to the Plaintiff’s self-determination right, and there was no causal relation with the Defendants’ violation of the duty of explanation, and thus, it is difficult to accept the Plaintiffs’ claim against the Defendants for damages due to the Plaintiff’s injury on the ground of violation of the duty of explanation and the duty of explanation. However, it is difficult to accept the judgment of the court below on the following grounds.

(1) According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted, the following facts are revealed.

(A) From H 15:10 to 15:18 of the same day, Plaintiff A given birth to Plaintiff C and D, both of which were two parts of the Defendant’s council members, through a revolving part of the Plaintiff’s meeting, as indicated in the judgment of the court below, and thereafter, Plaintiff A continuously appealed for the pain of the revolving part of the revolving part of the meeting and the part of the clothes, but the blood relationship was not verified as a result of the promotion, and the special blood transfusion was not observed.

(B) At around 19:40 on the same day, Plaintiff A was unemployed in the middle of the Do, which occurred in the Defendant’s invasion. At around 20:30 on the same day, Plaintiff A was in a state where blood pressure was considerably lower than 80/50m Hg, and Plaintiff A was in an empty state of 100 times per 100m Hg of the heart-pambox water (average voltage is calculated at 60m HHg), and the blood species or quality transfusion were confirmed in her womb. In addition, according to the blood test at around 21:21 on the same day, according to the blood test at around 21:21 on the same day, the blood color (Hogle) number was 5.6m/D (normal : 12-15gm/dd) and the red blood volume was 15.9% (average 34-48%) of the volume (average 48%) of the red blood volume.

(C) The physician on duty of the Defendant’s member determined that the Plaintiff’s surgery and the quality of the surgery occurred and contacted the said Defendant. The said Defendant arrived at around 21:20, and 21:20, and her blood transfusion against the Plaintiff for two hours, but did not take any other measures during the said period.

(D) The above defendant transferred the plaintiff A to an operating room to verify the blood level of 23:50 on the same day, but the blood level was too inside, but the blood level was not confirmed due to the existence of the womb, and the blood level was not confirmed. Although the blood level was attempted to do so by using dys, the blood level was not prevented, and it was left at the operating room around 03:30 on September 26, 2008 on the following day.

(E) The above Defendant decided to transfer the Plaintiff A to the Artificial University and Busan White Hospital, which is a general hospital, and recommended the Plaintiff A and B to do so. The above Plaintiffs refused to move to the brightness, but decided to move to the Plaintiff, and the Plaintiff’s blood transfusion continued to have been transferred to the Plaintiff. Meanwhile, the Plaintiff had worked for a nurse for about a half-year period from the surgery room and for about three to four years from the operation room of the medical center.

(F) At around 04:30 on the same day, Plaintiff A departed from the Defendant Council member and arrived at the emergency room of the Indones University Busan Hospital. At the time of arrival, blood pressure was far away from 80/60m Hg at the time of arrival, and beebage had considerably deteriorated 116 times per minute.

The plaintiff A was in an emergency operation, such as an dynassis and an internal dynassis, after the arrival of the above emergency room from 14:00 to 14:00 of the same day, and an emergency operation, such as an dynassis and an internal dynassis, but suffered injury in the judgment of the court below, such as an dynassis of the function of the former brain

(G) The Plaintiff A, due to the pressure of the fetus at the time of childbirth, found that the blood transfusion was formed within the aftermathing mouth due to the tearing of the body of the part of the body of the body of the body of the body of the Plaintiff, and the blood pipes on the inner part of the body of the body of the Plaintiff were teared together, etc.

The cause of proteperous transfusion is that there are remaining chirropic chirropical chirrophers, chheatal chophers, and chirrhetoric chophers that occur when the fetus is delivered according to acid. Among them, it is known that it can be observed into the body because the chophers and the remaining chophers flow out from the chhetoral chophers, and even in the case of reproductive heat, it is possible to observe into the body, but in the case of the reproductive heat, it can be observed into the body, but in the case of the organization where the chophers are formed without the chopic chopher, it is difficult to confirm into the body, so serious low pressure or shock shocks cannot be found to be easily copied until the girrhetoric mhetoric chhetoric chhetoric chus is written.

(h) Meanwhile, the above Defendant filed a criminal charge for the injury inflicted upon Plaintiff A due to occupational negligence, but was subject to a disposition of “no suspicion (defluence of evidence)” on August 31, 2010 (Article 2010 of the Busan District Prosecutors’ Office). (Article 56133 of the Busan District Prosecutors’ Office) and its appeal was dismissed on November 24, 2010 (Article 2010 of the Busan High Prosecutors’ Office and Article 2128 of the Busan High Prosecutors’ Office).

(2) We examine the above facts in light of the legal principles as seen earlier.

(A) After delivery, in light of the following: (a) Plaintiff A constantly complained of the pain part of the body and the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body; (b) blood pressure, heart drinking water, and blood test result of the body part of the body part at the time of the second body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part; and (c) the body part of the body part of the body part of the body part of the body part of the body part

(B) Since Defendant E also seems to have been fully aware of the possibility of the said Plaintiff’s blood pressure, heart water, blood test results, etc., Defendant E is obligated to promptly find the cause of the blood transfusion and the part of the blood transfusion and to give the blood transfusion. When Defendant E becomes aware that such measures are not easy due to the circumstances of the Plaintiff E’s Council members, he/she shall promptly explain such circumstances to the Plaintiff or his/her guardian and shall transfer the Plaintiff to another hospital to receive appropriate treatment.

(C) The above defendant attempted to transfer the above plaintiff to an operating room to find the blood transfusion part after 2 hours and 30 minutes of the suspicion of the plaintiff A's blood shock. The circumstance that the plaintiff cannot be confirmed properly in the process of re-afusing the part of the re-absent part which was opened at the time of delivery and finding the part of the blood transfusion. In light of this, even if the above defendant continued to find out the blood transfusion part or endeavored to prevent the blood transfusion and provided various treatment for it, as long as the above plaintiff was in an emergency situation requiring prompt blood transfusion, the above defendant should have promptly judged whether there was a need to transfer the above plaintiff to the general hospital, and it is difficult for the plaintiff to be given more specific opportunity for treatment than the above plaintiff to be given more specific opportunity for treatment by explaining these circumstances to the above plaintiff and his guardian at least more detailedly after the second time of the plaintiff's second surgery and informing the plaintiff to the above plaintiff's emergency situation after moving them to the operation room, and it is more difficult for the plaintiff to be given more specific opportunity for treatment.

However, even though the plaintiff A and B did not agree to the request for the whole of the above defendant, the whole plaintiff A was somewhat delayed. However, considering the circumstances where the plaintiff A had worked in the mountain department and the operating room as a nurse and it seems that the defendant gave accurate explanations about his symptoms from the above defendant, that is, he would have consented to all of the above defendant, it seems probable that the above defendant recommended all of the above defendant and did not properly explain the specific symptoms of the plaintiff A to the above plaintiffs.

(D) Ultimately, the above defendant delayed the decision on electric source treatment of the plaintiff A, and did not specifically explain the emergency situation caused by the plaintiff A's exposure show and the treatment method required therefor, thereby causing delay in the appropriate electric source treatment, and other special circumstances.

Unless there exist any circumstances, it is reasonable to deem that there exists a causal relationship between such mistake and the above injury suffered by the Plaintiff, and the above Defendant is obligated to compensate for this matter. Furthermore, as seen earlier, the above Defendant received a disposition of “no suspicion” in a criminal case concerning medical malpractice related to the above injury of the Plaintiff A, and it does not change.

(3) Nevertheless, the lower court, on the grounds indicated in its reasoning, concluded that it is difficult to recognize the above Defendant’s violation of the duty to explain and rejected the Plaintiffs’ claim seeking damages against the above Defendant.

Therefore, this judgment of the court below against the above defendant is erroneous in the misapprehension of legal principles as to the duty of all medical malpractice and doctor's duty of explanation, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

D. Meanwhile, considering the above facts in light of the legal principles as seen earlier, the above duty to explain and explain is related to the medical practice of Defendant E, which is a doctor, and it is difficult to recognize that Defendant F and G, a nurse and assistant nurse who assist Defendant E, barring any other special circumstances, have such duty. Thus, Defendant F and G cannot be held liable as a joint tortfeasor for the violation of their duty.

Therefore, the conclusion of the court below's rejection of this part of the liability for damages against Defendant F and G is acceptable, and there is no error of law that affected the conclusion of the judgment due to the above error by the court below.

3. Conclusion

Therefore, the part of the judgment of the court below regarding Defendant E is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' remaining appeals are dismissed, and the costs of appeal incurred between the plaintiffs, Defendant F and G are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant