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The judgment below
The part against the defendant is reversed, and the case is remanded to the Seoul High Court.
Reasons
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Regarding ground of appeal No. 1
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 he/she has breached his/her duty of care in the medical process or whether there exists causation between the violation of his/her duty of care and the occurrence of damage. Therefore, it is also possible to presume such symptoms as medical negligence by proving indirect facts, other than medical negligence, where symptoms causing serious results occur to a patient during the surgery, and it is difficult to see that there are other causes than medical negligence. However, even in such a case, it is not permissible to assume the burden of proof to a doctor without negligence by estimatinging the causal relationship between the doctor's negligence and the gross negligence on account of the circumstances where it is not likely that the occurrence of a result is likely to be presumed by a doctor's negligence.
(see, e.g., Supreme Court Decision 2010Da96010, 96027, Jun. 27, 2013). Meanwhile, in providing medical treatment, a doctor has a considerable discretion in choosing the method of medical treatment deemed appropriate according to the patient’s situation, the level of medical care at the time, and his/her knowledge and experience. As long as it does not deviate from the reasonable scope, either one of the results of medical treatment is just and the other is not deemed as negligence.
(see, e.g., Supreme Court Decision 2005Da5867, May 31, 2007). In addition, in a case where a subsequent disability is caused by medical practice, if the subsequent disability satisfies the best measure at the medical level at the time of the pertinent medical practice, the merger of the relevant medical practice process may occur.