2014Da15248 (Definition)

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

1. The Cheongju Medical Center in Chungcheongbuk-do;

2. N (BE : Before names);

Cheongju District Court Decision 2012Na3303 Decided January 14, 2014

June 23, 2015

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

The grounds of appeal are examined.

1. As to the grounds of appeal on the treatment of acute malutism and the assertion of negligence by all of them

A. When a doctor performs medical acts such as diagnosis and treatment, he/she has the duty of care to take the best measures required to prevent risks depending on the patient’s specific symptoms or circumstances in light of the nature of the duties of managing the patient’s life, body, and health. Such duty of care is based on the level of medical practice performed in the clinical medicine field, such as a medical institution, at the time of performing the said medical act. However, the level of medical care refers to the so-called medical awareness generally known to and recognized at the time of the medical act by an ordinary doctor, and thus, ought to be grasped at a normative level by taking into account the medical environment, conditions, characteristics of the medical act, etc. (see, e.g., Supreme Court Decisions 98Da45379, Mar. 26, 199; 209Da45146, Nov. 10, 2011).

In addition, even where a physician allows a nurse to participate in medical practice, the medical practice is performed under the responsibility of the doctor, and the nurse is merely an assistant. Where a nurse performs "medical treatment and assistance", it cannot be said that a doctor is present at the site at all times, and that he/she is given guidance and supervision. Therefore, there may be sufficient cases where a physician provides general guidance and supervision without the need to attend the site. However, this means that a doctor may instruct or delegate part of the medical practice under his/her command while performing the medical practice, taking into account the nature and risk of the medical practice (see, e.g., Supreme Court Decision 2010Do5964, May 10, 2012).

Meanwhile, civil liability and criminal liability arising from medical malpractice are different principles in terms of guidance ideology, burden of proof, degree of proof, etc. As such, in criminal cases regarding medical malpractice, a disposition of non-prosecution or non-prosecution of facts charged was rendered on the ground that there is a causal link between occupational negligence and occupational negligence or between the occurrence of death and death is difficult to be ruled out to the extent that there is no reasonable doubt, and thus, the civil liability is not denied solely for such circumstance (see, e.g., Supreme Court Decision 2012Da117492, Mar. 12, 2015). Furthermore, in a claim for damages arising from breach of the duty of care in medical practice, the victim’s act of medical negligence based on the common sense of the general public and the result thereof can be proven, and the burden of proof can be mitigated by presumption of causal relationship between medical negligence and the result thereof (see, e.g., Supreme Court Decision 2005Da27492, Apr. 12, 2015).

(1) From January 15, 2005, the Deceased had been continuously receiving hospitalized treatment four times from Defendant Chungcheongbuk-do Cheongbuk-do Cheongdong Medical Center (hereinafter referred to as the “Defendant Medical Center”) due to chronic pulmonary pulmonary disease, etc., but, on May 31, 2010, the Deceased complained of the difficulty in pulmonary disorder and re-exploited to the emergency room of the Defendant Medical Center.

(2) The Deceased received treatment from the Defendant, a medical doctor affiliated with the Defendant, from around that time. On June 4, 2010, the Deceased complained of a difficulty in pulmonary treatment around 00:30, but was under the breathic treatment, etc., and was under the breathic treatment.

(3) At around 06:00 on the same day, the Deceased complained of the difficulty in repulmon and performed the pulmonary therapy of the medical staff of the Defendant hospital, however, despite the above treatment, the Deceased’s condition was not improved, and he appealed from around 06:20, and the Defendant I, who was so reported, instructed K, a nurse in charge, to conduct blood tests, chest-ray photographing, and heart-ray tests, etc. to check the cardiopulmonary efficacy value.

(4) Accordingly, at around 06:40, K received blood tests on the Deceased and confirmed it by means of a computer around 07:50, and at around 07:50, K confirmed that the CK-M value was 13.5 (Witness 0-3.6), and Tropoon (Tropon 0-0.1) with 13.5 (Tropon 0-0.0) in both heart cropoon and 2.55 (Tropon 0-0.0). On the same day after K reported the result of the above blood tests to the Defendant, K was observed at the ST Section 08:28:55, on the same day. Meanwhile, the chest radiation was taken on the same day, and it was found that at least 06:685, K did not have any particular effect.

(5) As a result of the above examination, the deceased was suspected of being acute fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluoral

(6) At around 09:08 on the same day, the Deceased arrived at the Chungcheong University Hospital and died of a cardio-cerebral shocke due to cardio-cerebral emeral emeral emeral emeral emeral emeral emeral emeral emeral emeric emeral emeric emeric emeric emeric emeric emeric emerc

(7) As the supply of oxygen and nutrition to the heart is severed due to a sudden eromatic disorder, the heart eromatic eromatic erogens in the heart are rapidly deteriorated and the heart eromatic erogens in the heart are destroyed within a flood range of up to 10 minutes. The patients appeal most pleromatic erogens. The method of diagnosing whether a acute eromatic erogens are acute erogenic erogens, blood tests, etc. are conducted.

Blood testing is to verify the numerical value of kinain other than CK-MB or Troon, which is the core in the blood, and if the numerical value increases, it is strongly suspected that the cardio-copon has increased. A prosecutor of the cardio-copdo can confirm the change of cardio-copon in the event of a cardio-copin which records the electrical change occurring in the heart in the heart, and a prosecutor can confirm the change of cardio-copon when the cardio-copin occurs. A prosecutor of the cardio-copon also can confirm the result within a short time if the heart is attached to the skin, and if the cardio-copon is suspected, it is necessary to implement it without delay (within 10 minutes).

(8) Meanwhile, Defendant 1 filed a criminal charge of occupational injury or death in relation to the death of the deceased, but was subject to a disposition of “no suspicion of evidence” on July 20, 2011 (Article 2011 type No. 2853 of the Cheongju District Prosecutors’ Office), and the application for a ruling thereon was dismissed on February 6, 2012 (Article 201 type No. 395 of the Daejeon High Court). The above circumstances are examined in light of the aforementioned legal principles.

(1) As an emergency that threatens the life and requires immediate treatment. Since the deceased complained of a scarcity, a typical symptoms of the cardio-fluorial color certificate, Defendant I is obligated to diagnose whether he is a cardio-fluorous color witness and take measures accordingly by promptly conducting the cardio-fluorial test necessary for the diagnosis as soon as possible.

(2) However, the prosecutor’s examination of the deceased shall be conducted two hours after receiving a report from the deceased that the deceased complained of scarcity and ordered the inspection, and the treatment of all of the deceased was delayed as much as possible. Since the method can be confirmed simply and within a short time, it is presumed that the prosecutor immediately conducted the examination of the defendant 1, or urged and verified the defendant, and that the treatment of all of the deceased was done much more early, and at the latest, it would have been possible to take appropriate measures for the treatment of acute scarcitys, such as electric power generation, etc., at around 07:50 on the same day when the result of the examination of the above blood was reported. Accordingly, if the deceased was treated as soon as possible, it cannot be ruled out that the possibility of the death would not have occurred until it reached the death.

(3) Ultimately, the Defendant or the employees of the Defendant hospital are negligent in the diagnosis of whether the deceased’s acute fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluoral f

(4) In addition, as seen earlier, the Defendant 1’s liability for damages under the civil law was denied on the ground that he was subject to “no suspicion in a criminal case regarding the death of the Deceased.” Moreover, even if K, who was a nurse, was ordered by Defendant 1, did not timely conduct the heart inspection even after he was ordered by Defendant 1, the foregoing heart inspection, etc. is conducted under the responsibility of Defendant 1, who was a doctor, and K merely is an assistant, and such circumstance alone does not necessarily lead to the grounds for denying Defendant 1’s liability for delay in the heart inspection, etc.

D. Nevertheless, the lower court rejected Defendant I’s claim of this case against Defendant I for tort liability under Article 750 of the Civil Act and the Defendant Medical Center’s liability under Article 756 of the Civil Act on the premise that it is difficult to recognize Defendant I’s negligence with respect to the treatment and electric power resource of the deceased’s acute distress disorder on the grounds as indicated in its reasoning.

Therefore, the lower court erred by misapprehending the legal doctrine regarding medical malpractice or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, which affected the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. As to the remaining grounds of appeal and the grounds of appeal claiming a violation of the rules of evidence

A. Medical practice is an area requiring highly specialized knowledge, and it is very difficult for a general person, not an expert, to clarify whether a doctor has breached his/her duty of care in the course of medical practice or whether there exists causation between a doctor’s breach of his/her duty of care and the occurrence of losses. Therefore, in cases where symptoms causing a serious result occur to a patient, it is possible to presume that such symptoms are based on medical negligence by proving indirect facts that it is difficult to deem any other reason than medical negligence. However, even in such a case, even if it is possible to presume that the occurrence of a result is based on medical negligence by proving indirect facts that are difficult to deem that there is a cause other than medical negligence. However, even in such a case, it is not allowed to bear the burden of proving the causal relationship between a doctor’s negligence and a result without fault on the grounds that there is no possibility to presume the occurrence of a result from a doctor’s negligence (see, e.g., Supreme Court Decisions 2002Da45185, Oct. 28, 2004; 2005Da55867

On the other hand, in providing medical treatment, a doctor shall have the reasonable discretion to choose the method of medical treatment deemed appropriate based on the patient’s situation, the current medical level, and his/her own knowledge and experience. Unless it deviates from the reasonable scope, only one of the results of medical treatment is justifiable and cannot be said to be the negligence for any other measure (see, e.g., Supreme Court Decision 2005Da5867, May 31, 2007).

In addition, the court shall determine whether the assertion of facts is true in accordance with logical and empirical rules, based on the ideology of social justice and equity, by taking into account the overall purport of pleadings and the result of examination of evidence (Article 202 of the Civil Procedure Act). The fact that the judgment of the court below did not go beyond the bounds of the principle of free evaluation of evidence and thus legitimately confirmed is binding on the court of final appeal (Article 432 of the same Act). (b) The court below, citing the reasoning of the judgment of the court of first instance, it is not sufficient to recognize that Defendant 1 was negligent in the process of inspection and diagnosis of the deceased, and (2) it is insufficient to recognize that Defendant 1 or the person related to the defendant medical center was not aware of the heart-related disease of the deceased, and (3) it is insufficient to recognize that Defendant 1 or the

C. Of the judgment of the court below, the part of the ground of appeal disputing the fact-finding is merely an error of the choice of evidence and the judgment on the value of evidence belonging to the free trial of the fact-finding court.

In addition, even when examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the relevant legal doctrine as cited by the lower court, and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the negligence of medical practice, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below 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 Kim Jae-young

A person shall be appointed.