[1] Whether a doctor's duty of explanation may be exempted solely on the grounds that there is little possibility of risk such as post-treatment or side effects in accordance with the specific contents of the doctor's duty of explanation and medical practice (negative)

[2] The case holding that the judgment below erred by misapprehending legal principles, in a case where Gap hospital's medical personnel performed a long time operation with the body organs inserted into Eul, and suffered from the aftermathal disorder, such as a small functional disorder on both sides, without explaining that Eul's above-mentioned scopic disease in the process of anesthesia and surgery would have deteriorated and that there is a possibility of light-scale and scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic sche

[1] Where a doctor performs a medical act that is likely to cause bad results, such as surgery, etc., or performs a medical act that is anticipated to cause death, etc., barring special circumstances such as an emergency patient, he/she is obligated to explain the symptoms of a disease, treatment method and necessity, foreseeable risk, patient's condition before the procedure, and possibility of causing serious results due to merger of the procedure, prevention possibility, etc. to the patient or his/her legal representative in light of the current medical level, and to choose whether to receive the medical act by sufficiently comparing the necessity or risk of the medical act. A doctor's duty to explain cannot be exempted solely on the basis that there is little possibility of danger such as post-treatment or side effects, etc. following the medical act, and where post-treatment or side effects are dangerous or unable to be recovered typically caused by the relevant medical act, notwithstanding the possibility of occurrence.

[2] The case holding that the judgment below should have determined otherwise by misapprehending the legal principles as follows, in a case where the medical personnel of Gap hospital suffered from the aftermath of the heart disease of Eul, which caused severe life, health, and injury to the patient in light of the medical level at the time of the operation, and even if the frequency of occurrence is low, it could cause serious harm to the patient in light of the medical level at the time of the operation, and thus, it could cause serious harm to the patient in light of the medical treatment level at the time of the operation, and thus, it could not be expected that the operation would be conducted in case of the patient in good faith.

[1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act

[1] Supreme Court Decision 94Da3421 delivered on January 20, 1995 (Gong1995Sang, 885) Supreme Court Decision 2002Da45185 Delivered on October 28, 2004 (Gong2004Ha, 1929) Supreme Court Decision 2005Da5867 Delivered on May 31, 2007 (Gong2007Ha, 949) Supreme Court Decision 2005Da69540 Delivered on September 7, 2007

Plaintiff (Law Firm Seosung, Attorneys Im Jae-eat et al., Counsel for the plaintiff-appellant)

Samsung Bio-Public Interest Foundation (Law Firm Sung, Attorneys Kim J-hee et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na2038089 decided January 25, 2018

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court rejected the Plaintiff’s assertion that the Plaintiff violated the duty to protect the horse in the process of conducting inspections prior to the instant surgery, anesthesia and surgery. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on determining the existence of a doctor’s negligence or by misapprehending the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, thereby

2. Regarding ground of appeal No. 2

A. Where a doctor performs a medical act that is likely to cause an adverse consequence, such as surgery, etc., to a patient or his/her legal representative, or performs a medical act that is anticipated to cause a death, etc., barring special circumstances such as an emergency patient, he/she is obligated to specifically explain the symptoms of a disease, treatment method and necessity, foreseeable risk, patient condition before the procedure, possibility of causing serious result due to a merger of the procedure, prevention possibility, etc. in light of the current medical level, and to allow the patient to choose whether to receive the relevant medical act by sufficiently comparing the necessity and risk. A doctor’s duty to explain cannot be exempted solely on the grounds that there is little possibility that there is a risk such as post-treatment or side effect, etc. following the medical act, and where the post-treatment or side effect is a risk that typically causes, or cannot be recovered, the relevant medical act is subject to the explanation of the possibility of occurrence (see, e.g., Supreme Court Decisions 200Da4825, Apr. 15, 2005). 205.

B. As to the duty to explain the following: the duty to explain the aftermathy due to the Raba from the Raba's disease by the Raba

1) Review of the reasoning of the lower judgment and the record reveals the following facts and circumstances.

A) The Plaintiff was admitted to the Defendant hospital due to the bridge pain, etc., and was diagnosed by the MOI prosecutor conducted at the Defendant hospital as well as the vertebin vertecin vertecin vertecin vertecin vertecin verteum No. 5-6 of the Gyeongmo

B) In addition, the Plaintiff was diagnosed at Defendant Hospital with unstable ties and the left-hand fluorculing complete fluorculing as a result of the ornamental beerculing, and had the Plaintiff undergo an opening plesculing and the left-hand beerculing beer for treatment of the heart disease as above (hereinafter “instant operation”).

C) Prior to the instant surgery, the medical personnel at the Defendant hospital explained to the Plaintiff that cerebral mala, cerebral cerebriform, cerebrovascular, etc. caused by the surgery due to the complication of anesthesia, and anticipated risks during the surgery and recovery therefrom, such as cerebral ephism, cerebral ephism, renal ephism, and ephical ephism damage, etc., but did not explain that in the process of anesthesia and surgery, the Plaintiff’s ephical ephal ephism and ephal ephal ephal ephism are likely to occur due to the aggravation of ephical eph

D) The instant surgery was performed under the general anesthesia using an institution inserted, and during the instant surgery, the Plaintiff was scarcity and scarcity scarcitys against the Plaintiff, and the time of surgery was 10 hours.

E) In general, in the process of inserting the climatic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic cliffic clif

F) As a result of the instant surgery, the Plaintiff suffered serious chronic disorders, such as booming functional disorders on both hand, decline in the level of influence on both sides, etc., and urinology in urinology in urinology, which are difficult to recover the burinary burinary burinosis, etc.

2) Examining the foregoing facts in light of the legal principles as seen earlier, in the event that a patient with a scopic scopic anesthesia, scopic scopic scopic and scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopicscopic scopic scopic scopic scopic sc

3) Nevertheless, the judgment of the court below that the Plaintiff’s present disability status exceeds the scope of a merger certificate ordinarily predicted in the instant surgery, and thus, it is erroneous in the misapprehension of legal principles as to the duty of explanation, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

C. As to the duty to explain the necessity, timing, etc. of the second surgery

For the reasons indicated in its holding, the lower court rejected the Plaintiff’s assertion that the medical personnel at Defendant Hospital violated the duty of explanation on the necessity and timing of the second surgery. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the standard of a doctor’s breach of the duty of explanation, etc., as

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Noh Jeong-hee (Presiding Justice)