In a case where a physician’s physical 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 he/she may claim for the payment of operating expenses and medical expenses (negative), and whether the same applies to cases where the liability of the doctor is limited in consideration of the physical nature of the victim or the risk

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 in accordance with the principal place of the medical treatment obligation, or is merely conducted as a part of the compensation for damage, and thus, the hospital cannot claim for the payment of surgery and medical expenses against the patient. This also applies to cases where the liability of the doctor is limited in view of the victim’s physical nature, disease, and risk of treatment, such as surgery, even though there is no cause attributable to the victim due to the occurrence or expansion of damage.

Articles 390, 393, 681, 686, and 763 of the Civil Act

Supreme Court Decision 92Da15031 Delivered on July 27, 1993 (Gong1993Ha, 2381) Supreme Court Decision 2005Da13028 Delivered on June 9, 2005

Plaintiff 1 (Law Firm Barun, Attorneys Lee Won-il et al., Counsel for the plaintiff-appellant)

Plaintiff 2 and three others

○○ Social Welfare Foundation (Attorney Shin Jae-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na117463 decided February 24, 2011

The part of the lower judgment against Plaintiff 1’s property damage is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed. The costs of appeal between Plaintiff 2, 3, 4, and 5 are assessed against the Defendant.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Regarding ground of appeal No. 1

(1) In a case where a claim for damages is filed on the ground that a doctor’s breach of duty of care is a tort, as in the case of a medical practice, there should be causation between the negligence in the medical practice and the occurrence of losses. The burden of proof is borne by the patient. However, since the medical practice is an area requiring highly professional knowledge and it is extremely difficult to find out whether a doctor’s breach of duty of care was committed, or whether there was causation between the breach of duty of care and the occurrence of losses, it can be presumed that the symptoms are attributable to a patient during the surgery or after the surgery, if indirect facts are proved that there are other causes than the medical negligence in connection with the occurrence of the symptoms, and it is difficult to deem that there is any other causes than the medical negligence (see Supreme Court Decision 2012Da6851, Feb. 12, 2015).

(2) citing the reasoning of the first instance judgment, the lower court determined that: (a) Plaintiff 1 complained of cryposis and cryposis before the instant procedure, and did not seem to have any special obstacle to physical exercise, such as walking on his own before and after the instant procedure; (b) the cryposis and cryposis appeared in the event that the cryposis cryposis, which is the part of the instant procedure, was pressured or damaged; (c) the medical record did not have any cryposis or cryposis; and (d) there was no opinion of cryposis, etc. to the Plaintiff at the time of the instant procedure immediately before the instant procedure; and (d) there was no possibility that the cryption cryposis might occur due to the cryposis escape symptoms diagnosed before the instant procedure against the said Plaintiff; and (d) there was no possibility that the Plaintiff could incur any crypump cryp disorder other than the cryposis surgery caused by the instant surgery.

Furthermore, based on the reasoning of the judgment of the court of first instance, the court below rejected the Defendant’s assertion that, upon citing the reasoning of the judgment of the court of first instance, she inevitably occurred due to the Plaintiff 1’s physical fitness or spaculism caused by spaculism or spaculism at the time of the instant procedure, there is no evidence to prove that there was a special vulnerability to spaculism caused by the Plaintiff 1’s physical spaculism or spaculism.

(3) Examining the aforementioned legal principles and records, the above determination by the court below is justifiable. In so doing, it did not err by misapprehending the legal principles on medical malpractice or causation.

B. Regarding ground of appeal No. 2

(1) citing the reasoning of the judgment of the court of first instance, the court below rejected the Defendant’s assertion that, based on the result of physical commission of the head of the Gangseo-gu hospital of the first instance court, Plaintiff 1 had the labor ability loss rate of 100% from the point of view of Plaintiff 1’s members at the Defendant hospital, and there was an escape certificate of the conical signboard escape No. 4-5, No. 5-6, No. 6-7, and spine space coup due to the stimulsion, etc. from the point of view of the Plaintiff 1’s members at the Defendant hospital, and thereby, the labor ability loss rate should be at least 23%, and thus, the contribution ratio to the above stimulsive disorder should be considered. However, according to the result of physical commission of the head of the Godong-gu Hospital of the first instance court, it rejected the Plaintiff 1’s assertion that there was no snasium that caused symptoms at the present

Examining the relevant legal principles and records, the above determination by the court below is justifiable. In so doing, there were no errors by misapprehending the legal principles on the apportionment ratio in calculating the burden of proof of contribution to the king, the calculation of opening expenses, or the ratio of loss of labor ability.

(2) The Defendant’s ground of appeal asserts that the limitation of liability ratio of the lower court is unreasonable, but no further determination is made as to Plaintiff 1’s appeal on this part, as examined thereafter.

C. Regarding ground of appeal No. 3

Upon examining the record, the judgment of the court below that the plaintiff 1 may increase the income amount of 10,936,875 won per month calculated on the basis of the business income reported to the tax authority from July 26, 2017, when the date of the accident in this case to July 26, 2017 (see Supreme Court Decision 93Da3158 delivered on September 14, 1993) and there is no error in the misapprehension of legal principles as to the recognition of income in damages.

D. Regarding ground of appeal No. 4

(1) If a doctor fails to perform his/her duty of care as a good manager, and the bodily function of a patient was irrecoverablely damaged, and, after the damage, only treatment of a patient was continued to the extent that the recovery of the post-treatment tax or the prevention of any further aggravation is not based on the substance of the medical treatment obligation, or since the treatment was conducted as part of the damage, and thus, the hospital cannot claim for the payment of surgery and medical expenses against the patient (see Supreme Court Decisions 92Da15031, Jul. 27, 1993; 2005Da13028, Jun. 9, 2005). The same applies to cases where the liability for damages is limited in view of the physical nature of the victim, disease, risk of treatment such as surgery, etc. under the principle of fairness, even though there is no reason attributable to the victim for the occurrence or expansion of damage.

(2) The lower court, as indicated in its reasoning, limits the Defendant’s liability for damages based on the principle of fairness, regardless of whether there exists any cause attributable to the Plaintiff, while, at the time of the instant medical procedure against the Plaintiff 1, the Defendant’s defense against the Plaintiff 1, the Defendant’s claim against the Plaintiff 1 for offset, on the ground that: (a) the Defendant’s medical personnel at the Defendant Hospital violated the duty of due care as a good manager; (b) the physical function of the Plaintiff 1 was irreparably damaged; and (c) the treatment was continued to the extent to cure or prevent further aggravation of the legacy; and (d) the treatment act of the Defendant hospital was not based on the medical personnel’s obligation, or was performed as a part of the damage transfer; and (c) the Defendant cannot claim against the Plaintiff 1 for the payment of the medical expenses.

(3) Examining the aforementioned legal principles and records, the above determination by the lower court is justifiable. In so doing, it did not err by misapprehending the legal doctrine on offsetting medical expenses.

E. Ground of appeal No. 5

The amount of consolation money for emotional distress suffered by a tort may be determined at the discretion of the fact-finding court, taking into account various circumstances (see Supreme Court Decision 2013Da18332, Dec. 24, 2014).

Examining the record, the court below did not seem to have exceeded the limits of the fact-finding court's discretion to take full account of the circumstances in its holding. There was no error of law by misunderstanding the legal principles as to the calculation of consolation money.

The Supreme Court precedents pointed out in the grounds of appeal are inappropriate to be invoked in this case as they differ from this case.

2. As to Plaintiff 1’s ground of appeal

A. Regarding ground of appeal No. 1

Based on the reasoning of the judgment of the first instance, the lower court determined that the medical personnel at Defendant Hospital could not be deemed to have delayed diagnosis of Plaintiff 1’s respiratory difficulty, satisfafafafafafafafafafafafafafafafafafafafa

Examining the record, the above determination by the lower court is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. Regarding ground of appeal No. 2

(1) Where a harmful act and the factors on the part of the victim occur or expanded as a result of the concurrent act, even if the factors on the part of the victim are irrelevant to the causes on the part of the victim, such as the risk of treatment, such as physical form or disease and surgery, the court may take into account the factors on the part of the victim who contributed to the occurrence or expansion of the damage in light of the form, degree, etc. of the disease in question, in determining the amount of compensation, and applying the legal doctrine of comparative negligence in application of the comparative negligence. However, finding of facts as to the limitation of liability or setting its ratio should not be considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2014Da16968, Jul. 10, 2014).

(2) citing the reasoning of the first instance judgment, the lower court: (a) citing the reasoning of the first instance judgment, found Plaintiff 1 to have been showing an escape card on the side of conical signboards No. 5-6 and No. 6-7 in the instant medical procedure; (b) vertebal hemal hemosis blocking surgery; (c) even in the case of spinal hemal hemopsis, it cannot be completely ruled out that there is no possibility that hemal hemopsis may inevitably occur due to the chronic hemopsis, etc.; and (d) the Defendant hospital provided medical treatment for five years from the date of the instant medical procedure to June 24, 2009, taking into account the total medical expenses from the date of the accident to June 26, 2009, to KRW 726,500,500, and KRW 606 of the patient burden to the Defendant’s liability for damages.

(3) However, it is difficult to accept the above determination by the lower court for the following reasons.

According to the reasoning of the judgment of the court of first instance cited by the court below, since there is no evidence to find that the accident in this case was inevitably caused by the above plaintiff 1's physical novel or king, it is difficult to view that the accident in this case was inevitable due to the above plaintiff 1's physical novel or king, and the disease, such as the escape certificate of the side of the conical signboard No. 5-6, No. 6-7, and the spine Space Hascop due to the scopic scopic scoppy, etc., contributed to the aftermath, etc. of the accident in this case, or the scopscopic from the above disease occurred. Rather, according to the result of the physical examination entrustment to the head of the Gangwon-dong Hospital of the court of first instance for the head of the court of first instance, it is difficult to limit the defendant's liability for damages on the ground that the above plaintiff 1 did not have any scopic scopic symptoms that caused the present military symptoms or the above.

In addition, even if a large amount of expenses were incurred in the treatment process or the treatment period was prolonged, it is only a refund of damages caused by the negligence of the medical personnel of the defendant hospital, and it is not a factor of the victim who contributed to the occurrence and expansion of damages.

Nevertheless, the lower court’s determination of the Defendant’s liability ratio by taking account of the aforementioned circumstances as the primary grounds for reduction constitutes considerably unreasonable in light of the principle of equity. In so determining, the lower court erred by misapprehending the legal doctrine on limitation of liability in damages cases, thereby affecting

3. Conclusion

Therefore, the part of the lower judgment against Plaintiff 1’s property damage is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. The costs of appeal between Plaintiff 2, 3, 4, and 5 are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)