In a case where Defendant A and the caregiver Defendant B were indicted for occupational negligence on the ground that: (a) the Defendants were indicted for occupational death on the ground that they did not take appropriate measures, such as witnessing a place where the elderly sick with dementia admitted to the Medical Care Center did not properly raise food; and (b) did not leave the place of meals; and (c) thereby resulting in the death of a person resulting in occupational injury on the ground that they did not take appropriate measures such as leaving the place of meals; (b) the case holding that the Defendants breached their duty of care; and (c) the Defendants

In a case where Defendant A and Defendant B were indicted for occupational negligence on the ground that: (a) a medical care center operator: (b) the elderly sick with dementia admitted to the medical care center Defendant B did not properly raise food; and (c) did not take appropriate measures such as witnessing and leaving the place of meals; (b) thereby resulting in the death of the elderly; and (c) he was indicted for occupational negligence on the ground that he did not take appropriate measures such as leaving the place of meals; (d) the case held that C was admitted to the medical care center where the medical record was prepared at the time of the occurrence of the accident where the elderly sick with dementia admitted to the medical care center was unable to provide meals or provide meals after being hospitalized in the special care hospital due to violent dementia symptoms; and (e) the medical record was prepared at the time of the occurrence of the accident where the medical record was prepared for the treatment of the elderly at the time of receiving the outpatient due to the symptoms of waste collection; and (e) the fact that a similar situation in the case of the elderly admitted to the medical care center was widely known to the medical care center employees; and (e) the Defendants’s death could have sufficiently anticipated.

Articles 17, 30, and 268 of the Criminal Act; Article 22(1) [Attachment 4] of the former Enforcement Rule of the Welfare of Older Persons Act (Amended by Ordinance of the Ministry of Health and Welfare No. 312, May 1, 2015); Article 22(2) [Attachment 5] of the Enforcement Rule of the Welfare of Older Persons Act

Defendant 1 and one other

Defendants

Sheet Order et al.

Attorney Go Jae-hoon

Suwon District Court Decision 2014Ra1480 decided November 18, 2014

All appeals by the Defendants are dismissed.

1. Summary of the grounds for appeal;

A. The victim, as a dementia patient with severe symptoms, has been treated with normal urology, high blood pressure, liver disease, cardiopulmonary disease, cardiopulmonary disease, and waste convergence, etc., and the body significantly deteriorated as it appears in the preceding day of the instant accident. As such, the “cirropic color by radioactive material” being the private person was caused by the victim’s health condition, and is not caused by the Defendants’ negligence.

B. While operating the instant medical care center, Defendant 2 sufficiently trained employees including Defendant 1 on the rules, first aid guidelines, etc. to be observed when providing meals; Defendant 2 complied with the facility standards set forth in the Enforcement Rules of the Welfare of Older Persons Act by employing one caregiver per 2.5 persons admitted; and Defendant 2 did not neglect his duty of care as an operator of the instant medical care center from time to time, such as observing the living conditions of inmates.

C. Defendant 1, while drinking a boomed with the victim on the day of the accident, found the stability of the victim’s booming 3 to 4 times, as the victim was frightened, and had another inmate find the Defendant at that time, she was frighted. After that, Defendant 1 attempted to “Libyhy Law” with other caregivers to check the victim’s back to the victim’s back and back to the victim’s back to the back, removed foreign substances in the way of using the boom while using the boom, conduct artificial smoking, and reported 119 to the victim, and sent the victim to the hospital. As such, the Defendant took best measures within the extent of the capacity of caregiver as a caregiver in the course of meal or during the course of emergency measures.

The situation where brutal was entered in the victim's three institutions was a result of the victim's existing medical history, and it could not be avoided even if the defendant had performed meals while keeping the same place. As long as brutal was entered in the three institutions, even if the defendant was immediately taking emergency measures without delay for 3 minutes and 42 seconds, the result of death could not be avoided.

D. Nevertheless, the judgment of the court below which held that the defendants caused the death of the victim by occupational negligence was erroneous in the misapprehension of legal principles.

2. Determination

A. The judgment of the court below

Although the Defendants asserted the same purport in the lower court, the lower court determined that: (a) the Defendants had been fully aware of the Defendants’ failure to directly check whether the Defendants violated their instructions, and (b) Defendant 1 discontinued the Defendants on the grounds that (c) the Defendants had been sufficiently aware of the Defendants’ failure to directly check whether the Defendants violated their instructions, and (d) Defendant 2 had been able to fully recover if the victims were to have been suffering from drinking water, but Defendant 2 had been employed by the medical care center of this case; (b) Defendant 2 had them work as three times; (c) there was only a lack of number of caregivers required under the relevant laws and regulations; and (d) there was a provision of meals to the aged including the victims; and (c) there was a lack of direct care for the elderly; and (d) Defendant 1 discontinued the Defendants on the ground that they had been completely recovered if the victims were to have been suffering from drinking water due to their negligence.

B. Judgment of the court below

In full view of the following circumstances acknowledged by the court below and the evidence duly admitted and investigated by the court below, it is reasonable to deem that the Defendants’ death occurred due to the Defendants’ breach of duty of care in the course of performing their duties. Therefore, the judgment of the court below is just and the allegation by the other Defendants is

1) A victim had been diagnosed at the time of dementia in 2008 at the “Magdong Hospital”, and had been admitted to the “Sindo Medical Center” from September 201, 201. Around January 2012, the victim was hospitalized in the “Dong Yancheon Elderly Hospital” by showing violent dementia symptoms. After being hospitalized in the “Dong dong Yancheon Elderly Hospital”, the victim was hospitalized in the instant medical care center around December 24, 2012 when he was unable to move together or provide meals, and when it became impossible to communicate.

The victim received outpatients from August 2013 to August 2013 due to symptoms of the closure of the instant accident. The medical records prepared at the time indicate that “the victim, alone, does not have meals,” “the victim, on his own, has frequently been treated” (the investigative records face 79 pages).

2) 피해자는 2013. 8.경부터 침을 자주 뱉고 사레도 자주 걸리는 증상을 보였고, 특히 식사 전후로 가래침을 자주 뱉었으며 식사 도중에 이물질이 자주 들려 ‘켁켁’거리는 모습을 보였다. 이에 이 사건 요양원의 요양보호사들은 식사 때마다 피해자의 등을 두드리거나 피해자에게 물을 먹이는 방법으로 밥을 떠먹였으며, 한번은 피해자의 목에 손가락을 넣어 음식물을 빼낸 경우도 있었다. 피고인들은 이와 같은 사정을 충분히 인식하고 있었고, 특히 피해자의 딸 공소외 1은 2013. 8.경 ‘의정부성모병원’으로부터 “사레가 들릴 수 있으니 식사할 때 주의하여야 한다.”라는 말을 듣고 이 사건 요양원에 그와 같은 취지를 전달하면서 주의해 달라는 요청을 한 적도 있다.

In addition, it is widely known that the occurrence of a sudden event similar to this case in the case of the elderly with dementia admitted to the Medical Care Center is often likely to have been sufficiently predicted by the Defendants as well as the employees of the Medical Care Center (in case of investigation records 280). Defendant 2 also instructed that all the inmates of the dementia should be able to get out of the place of food during the meeting or education of the facility at the time of the meeting or education of the facility, but in fact, they did not comply with the direction.

3) According to Non-Indicted 2’s opinions on the autopsy report of the National Scientific Investigation Institute and Non-Indicted 2 of the trial examiner, it is clear that the victim’s private person is “defluent color by brutal,” at least,” even though the victim’s private person’s death is not clear as to what degree of brutal bom was incurred at the early stage of the accident, as well as at the specific brutism caused the victim’s death.

In addition, there is no circumstance to deem that the disease suffered by the victim was particularly aggravated immediately before the instant accident. As a result of the autopsy, there is no other disease that can be seen as a direct cause of the victim’s death except for the climination by radioactive materials). Therefore, there seems to be little possibility that the victim might have died for reasons other than the climination by radioactive materials.

4) Although the victim had experienced difficulties in meals due to interference with the past, the victim took measures such as cutting a caregiver, drinking water, etc. at that time, and was in a state where Defendant 1 did so immediately before and after leaving the above part, and the victim seems to have lost consciousness by continuously cutting the string back to the left part while continuing to do so (the investigation record 131, 137 pages), and approximately 3 minutes 42 seconds away from the victim where Defendant 1 had a meal and left the place during that period. Considering the fact that, in light of the fact that it seems considerably long time that Defendant 1 would have been able to take appropriate measures to prevent the death by taking appropriate measures by taking advantage of the victim's whole meals, Defendant 1 would have been able to take appropriate measures to prevent the death by taking proper measures.

5) However, even though the fact that the victim suffered from the previous injury was recognized as the main cause of the instant accident, (the same purport is the same as a reply to the inquiry by the National Science Investigation Agency for the fact-finding), and if the victim died due to the Defendants’ occupational negligence, even though the victim’s spawn was affected by a certain degree of death, the causal relationship cannot be denied as long as the risk caused by the Defendants’ negligence was a serious cause for the victim’s death (see, e.g., Supreme Court Decision 84Do831, Jun. 26, 1984). Thus, the above circumstance alone does not lead to the absence of causal relationship between the Defendants’ occupational negligence and the victim’s death.

6) At the time of the occurrence of the instant accident, 45 elderlys were admitted to the instant medical care center, and 18 caregivers were employed (the investigation record No. 171 pages). The number of caregivers as above complies with the standards for one person per 2.5 inmates as prescribed by the Enforcement Rule of the Welfare of Older Persons Act [Attachment 4], but in fact, 3 caregivers including Defendant 1 were working as three caregivers at the time of the instant accident. At the time of the instant accident, Defendant 1 stated to the effect that it was difficult for the instant medical care center to provide meals to many people. The investigation record No. 164,272 pages) provided meals to 35 elderlys who were admitted to the second floor of the medical care center, and the Defendant, in particular, was responsible for meals to the victim, including the victim.

Considering the actual working conditions of caregivers, it cannot be deemed that Defendant 2 performed all the duty of care necessary for the operation of the medical care center solely on the basis that Defendant 2 employed a number of caregivers as statutory number of caregivers. If the victim was aware of the situation that the victim suffered difficulties in meals due to serious disorder, the medical care center operator has a duty of care to assign the mother to the extent to cope with emergency situations at the time of providing meals. Nevertheless, Defendant 2 did not properly take measures to ensure the operation of the nurse to Nonindicted 3, the head of the team, while the care center did not confirm a number of caregivers who are in charge of usual meals without checking the number of caregivers, by means of gathering all visitors and increasing the number of caregivers (i.e., investigation records 278 through 281).

3. Conclusion

Therefore, the Defendants’ appeal is without merit, and all of them are dismissed under Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition (However, in accordance with Article 25(1) of the Regulation on Criminal Procedure, the Defendants’ appeal shall be corrected “10:0 on November 16, 2013,” and “3:0 on November 16, 2013,” and “3:0 on November 16, 2013,” respectively.

Judges Heung-ho (Presiding Judge)

1) Even according to the health insurance benefit content of the victim, it cannot be deemed that the victim was treated with the following conditions during the last 10 years: (a) the victim’s health insurance medical care benefit for the victim’s health insurance; (b) the victim’s disease was confirmed to have been treated with the pains under the influence of high blood pressure, urine, hystyphism; (c) the detailed unknown Albimer’s disease; (d) the cardiopulmonary disease; and (e) the waste collection by food soil; and (e) any other serious disease that may have been caused by the death of the

2) According to the Enforcement Rule of the Welfare of Older Persons Act [Attachment 5], the head of a medical welfare facility for older persons shall be equipped with an employee working system appropriate for the full-time protection of older persons admitted, shall be careful to the health conditions of persons admitted, and take necessary measures to maintain their health, and the elderly with dementia shall be separately protected according to the degree of dementia [8-f.(c), (d), and (g)].

3) According to the result of the CCTV analysis by the police, Defendant 1 seems to have left the part of the victim at around 07:41 (in case of investigation record 130 pages).