2015Da20582 Compensation (Definition)

1. A;

2. B

3. C.

4. D;

Plaintiff 1 and 4 are minors, and the legal representative B and C

1. E;

2. F;

Seoul High Court Decision 2012Na57585 Decided February 12, 2015

September 21, 2017

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

The grounds of appeal are examined.

1. A physician has a duty of care to take the best measures required to prevent any danger according to the patient's specific symptoms or circumstances when providing medical services, such as diagnosis, treatment, etc.;

Such duty of care shall be based on the level of medical practice performed in the field of clinical medicine at the time of the performance of medical practice. The level of medical practice refers to the so-called medical consciousness generally known to and known to ordinary doctors and known to the point of view. As such, normative understanding should be based on the environment of medical treatment, conditions, characteristics of medical practice, etc. (see Supreme Court Decision 2000Da20755, Mar. 23, 2001).

Meanwhile, medical practice is an area requiring highly specialized knowledge, and it is extremely difficult for a general person, not an expert, to clarify whether he/she has violated his/her duty of care in the course of medical practice, and whether there exists causation between the violation of his/her duty of care and the occurrence of losses. Thus, it is also possible to presume that the symptoms are based on medical negligence by proving indirect facts, other than medical negligence, where there is symptoms causing death to a patient during the surgery, and it is difficult to see that there is any other reason than medical negligence (see Supreme Court Decision 99Da66328, Jul. 7, 2000). However, even in such a case, it is not permissible to estimate the doctor’s negligence and causation with the doctor’s negligence on the ground that there is no possibility to presume that the consequences were caused by the doctor’s negligence (see Supreme Court Decision 2002Da45185, Oct. 28, 2004).

2. A. Based on the circumstances stated in its reasoning, the lower court presumed that the Plaintiff did not appropriately supply oxygen to the medical professionals in the institution inserted by the hospital operated by the Defendants (hereinafter referred to as the “Defendant hospital”), notwithstanding the inserted note in the institution, which was implemented by the medical professionals in question. This is presumed to have been due to the fact that the diameter of the Pib in the institution was too small so as to have failed to attract sufficient quantity to the wind, and that the Defendant hospital neglected to take measures such as observation of the progress of the medical professionals in the Defendant hospital, and as a result, failed to take measures such as replacing the Pib inside the institution in a timely manner with an appropriate size, and thereby, determined that the Plaintiff caused the Plaintiff’s brain damage to the low-carbon infection and thereby caused a trouble in the current brain math. However, the lower court’s determination is difficult to accept for the following reasons.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The Plaintiff C had regularly undergone a medical examination at the Defendant Hospital. At around 14:00 G14, which is the 38th anniversary of pregnancy, the Plaintiff C was hospitalized at the Defendant Hospital at around 15:00, and was hospitalized at around 21:33 on the same day, the Plaintiff A was discharged from the body of 3.92 km.

2) The J, a doctor belonging to the Defendant Hospital, did not sound immediately after the Plaintiff’s birth, and showed Cheong-ray’s opinion, and carried out laging and laging with the Plaintiff, while leading the Plaintiff to a lag. The Plaintiff’s oxygen was 78% in the monitor, and 82% in the 21:40. The Plaintiff’s condition was somewhat flag, such as the skin coloring and the laging of the laging, and the movement of the laging. The Defendant Hospital assessed the Plaintiff’s A’s Apgar for 14,55% in the 1st, and the 1st,55% in the 1st,53rd in the 2013rd in the 1st, the Defendant Hospital’s doctor affiliated with the Defendant Hospital, using the Plaintiff’s 150m in the 201st in the 203rd in the 2013rd in the 2015.

4) The medical staff of the Defendant Hospital attempted to communicate the Plaintiff to transfer the Plaintiff to the superior hospital, explained to the Plaintiff’s guardian that the status and all of the Plaintiff’s guardian are inter-faceted, and around 22:45, the Plaintiff’s doctor K et al., notified by the L Hospital that all possible, continued to be accompanied by an emergency vehicle and transferred the Plaintiff to the Plaintiff to L hospital. At that time, the Plaintiff’s oxygen map was 80%.

5) At around 22:55, Plaintiff A arrived at the emergency room of L hospital, and at the same time, the tubes of 3mm in diameter were maintained in the engine with a depth of 110cm. The face overall shows light, the telegraph was reduced, and blue proof was observed. The left shoulder gate is flurging and the head flurging was observed, but the head flurging was 64% in monitoring.

6) At around 22:56, M, which is the doctor of L Hospital, confirmed that the new sound would take place at the time of amping vialocking, ampinging, and around 22:58, at around 23:00, the Plaintiff moved the Plaintiff A to the concentrating Care Center for Newborns, and carried out the amper’s background by removing the tubes inserted inside the Defendant Hospital. The skin of the Plaintiff A was gradually string, and the skin of the Plaintiff A was measured 53/25 meters of blood pressure, 36.4 meters/Hg, 150 times of breath, and 45 times of respiratory.

7) A doctor M, around 23:03, at around 23:03, fixed the tubes of 4 meters in diameter to the Plaintiff, and re-Implementation of inserting pipes in the engine 9.5cm. At around 23:05, the oxygen intensity was 70% in the monitor.

8) At around 23:10, L hospital medical personnel applied the artificial absorption machine to the Plaintiff, while monitoring the oxygen intensity continuously. From 23:15 to 23:25, the oxygen intensity maintained from 80 to 85%. From 00:00 on June 11, 2010, at around 00:00 to 004, there were 95 to 98% on June 11, 201, but at around 00:08 to 00:25, there were 80 to 85% on around 00:08, while maintaining 80 to 90% on around 01:20, while maintaining 00 to 00% on around 01:20, maintaining at least 90% after 01:25.

9) Since G 23:18, medical professionals in L Hospital extracted the Plaintiff’s blood and inspected the dynamic gas on several occasions, and as a result of the inspection, the number of oxygen (pH), carbon dioxide powder pressure (pCO2), oxygen pressure (p02), heavycarbon infection (HCO3), and oxygen oxygen (O2SAT) in blood is as follows.

(1) G23: G 7.18 7.189 - 45.1m H. - 32.4m H. - 16.8mol/L - 49.1% on June 11, 2010: around 01: 7.319 - 29.7m H. - 22.0mH- 14.9mol/L - 34.1% on June 11, 2010; 36.36 - 15.0mH. - 31.0m - 36.0m - 36.0m - 15.0m - 36m - 15.0m g, 31.0m - 10.0m - 64m - 64m - 6.6m - 4m - 9.20m - 9.3m g.20

11) The plaintiff A was diagnosed in detail as an unidentified after being hospitalized in the L Hospital, and was diagnosed as a result of the pulmonary typhism of (defluence), the pulmonary pulmonal tension of (deficien) newborn baby, the pulmonal pulmonal pulmonal pulmone Refection of the newborn baby, the cerebral cerebral typhism caused by damage to her childbirth, the cerebral typhical typhism of the complete cerebral typhism, the lephal typhism of the upper right typhal typhism, the lephal typhism of the two chronic typhal typhal typhism, and the lephal typhal 1 disorder caused by the disorder of recognition and development function.

C. 1) According to the above facts, the Defendant Hospital’s medical team conducted monitoring from the date of the Plaintiff’s birth to the Plaintiff, and it appears to have confirmed that the Plaintiff’s luxation was properly conducted in the institution while luxation was conducted after the Plaintiff’s luxation in the institution. The Defendant Hospital’s nursing records indicate that the Plaintiff’s luxation rate was 82% around G 21:33, around 21:40, around 21:50, around 22:45, around 50, around 22:45, the Plaintiff’s luxation rate was indicated as 80% in the medical record. In light of the fact that the luxation rate was displayed from around 21:50 to around 22:45, the Defendant Hospital’s luxation rate was not indicated in the medical record for the period of 21:50 to 2505 to the Plaintiff’s luxation.

2) At around 22:45, at the time when the medical personnel of the Defendant Hospital transferred Plaintiff A to the hospital, the oxygen map was 80% by monitoring. At around 22:55, at the time of arrival in the emergency room of the L Hospital, the 22:55, and the 64% radius, and the 3m radius in diameter was maintained in the engine in a 11cm depth, and the Ma, which is a doctor of the L Hospital, was confirmed to have a new sound at around 22:56 at around 22:56. However, the L hospital’s medical personnel was 22:58.

Plaintiff A transferred the Plaintiff to the Newborn Intensive Care Center, around 23:00, the doctor M took place in an institution that was implemented by the medical staff of the Defendant Hospital, and took place in an ampample background, using ample 4m tubes in diameter at around 23:03, and re-enters in an institution with a depth of 9.5cm with a depth of 9.5cm, and the oxygen plug was measured as 70% in the monitoring level at around 23:05.

3) At around 23:15, after the medical professionals of L hospital applied the Plaintiff’s artificial absorption device, oxygen 80% to 85% increased. From June 11, 2010 to around 00:00, the medical professionals rateed to 95% to 98% in around 00:04. Meanwhile, from G 23:18 to the next day, the medical professionals of L hospital collected the Plaintiff’s blood and conducted a dynamic alcohol test on several occasions. The results of the test showed that around G 23:18 showed that the oxygen 32.4mHg of oxygen, blood oxygen ion rate was 49.1%, and around 44:36 hours after the engine inserting the engine’s substitution, the blood pressure rate continued to have been 36% in oxygen and low 36% in the blood pressure, and there was a serious fact that the blood pressure was 36% in oxygen and low 46% in the blood acid.

4) According to the result of the medical record appraisal entrusted to the head of the Seoul Hospital at the first instance court, the appraisal shows that with respect to the result of the dynamic gas test taken around G 23:18, the Plaintiff appears to have been compensating for severe pulmonary pulmonary pulmonary eption (metabolic Acsis repatis, alkalis) and oxygen pressure shows a severe drop.

5) Also, the result of the cardio-high wave conducted by L Hospital medical professionals to Plaintiff A around June 11, 2010 shows opinions on pulmonary high blood pressure, the second scarcity, and the expanded sub-scarcitys, etc., which suggest that the pulmonary organization might be abnormal.

D. In full view of the aforementioned various circumstances, the possibility of the Plaintiff A’s obsitivity cannot be ruled out, rather than that there was a pulmonary control problem. The circumstance cited by the lower court does not guarantee a probable probability to be presumed to have caused the same result as seen above due to the negligence by the medical personnel of the Defendant hospital. Therefore, it is difficult to presume the causal relationship between the negligence by the medical personnel of the Defendant hospital and the brain damage of the Plaintiff A.

Nevertheless, solely based on its stated reasoning, the lower court recognized the medical malpractice of the Defendant Hospital, and thereby, determined that the Plaintiff caused the cerebral cerebral Bribery damage to the Plaintiff. In so doing, the lower court erred by misapprehending the legal doctrine on the allocation of the burden of proof and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

2. Judgment of the presiding judge

Justices Kim Yong-deok

A person shall be appointed.