2016Da20831 Compensation (Definition)

person

1. A;

2. B

3. C.

Plaintiff 2 and 3 are minors, and the legal representative A

School Foundation D

Law Firm Han-ro et al., Counsel for defendant-appellant

Attorney Seo-gu, Attorneys Seo-gil-ho, Kim Jong-ho, and Yang Jong-chul

Seoul High Court Decision 2014Na17116 Decided March 31, 2016

November 15, 2018

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs’ appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the plaintiffs' grounds of appeal

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 the duty of care in the course of medical practice, or whether there exists causation between a doctor’s breach of such duty of care and a loss of such duty of care. Therefore, it is also possible to presume that the symptoms are attributable to medical negligence by proving indirect facts that are difficult to deem that there are any other causes than medical negligence in the process of surgery or after surgery. However, even in such a case, it is difficult to presume that the symptoms are attributable to medical negligence by proving indirect facts regarding the occurrence of the symptoms. However, it is not permissible to estimate the causal relationship with the doctor’s negligence as a result of a remote excessive outcome with circumstances where it is not probable to presume the occurrence of a result from a doctor’s negligence (see, e.g., Supreme Court Decisions 2002Da45185, Oct. 28, 2004; 2005Da5867, May 31, 2007).

B. The lower court determined as follows, during the period of hospitalization of the Deceased by February 9, 2011, that the medical personnel at the Defendant hospital did not neglect his/her duty of care necessary to treat the tuberculosis of the Deceased.

(1) It is difficult to view that the deceased was in a state of Madneosisic tests or treatment in order to raise doubt about the possibility of cerebral mathic infection, etc. against the deceased during the period of hospitalization with 4th anti- tuberculosis (peptospirosis, chlostic, spirine, spirine, spirosis, and so on, or that the deceased was in a state of need for Madneological tests or treatment to cope with such diseases.

(2) The evidence submitted by the Plaintiffs alone is insufficient to recognize the fact that the deceased appealed to the medical personnel of the Defendant hospital during the period of hospitalization, and the medical personnel of the Defendant hospital did not err in the clinical progress and observation of the deceased during the period of hospitalization, or did not properly state the symptoms of the deceased in the medical record. Therefore, it cannot be deemed that the medical personnel of the Defendant hospital was negligent in continuing administering the beptostoma without undergoing a force test.

(3) In full view of the fact that there is no established academic basis as to whether the pulmonary pulmonary pulmonary Amar and the appraisal of the H Hospital could prevent pulmonary epidemia from being exposed to the crymosis, it cannot be said that the medical team of the Defendant hospital was negligent in failing to make the crymosis while administering the crymosis to the deceased, in view of the fact that the deceased was a young female who did not have a high risk group of brain disease, and thus, was not in an essential situation for the crymosis at the time.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine regarding negligence and causation in a medical lawsuit, or by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

Although the plaintiffs asserted that the judgment of the court below that limits the defendant's liability is unreasonable, as seen in the following, the judgment of the court below that recognized the defendant's liability for damages is reversed, the above assertion by the prior plaintiffs cannot be accepted without any need to determine.

2. Judgment on the Defendant’s grounds of appeal

A. A physician has a 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, and the same duty of care is required as long as the surgery for the patient, as well as the surgery for the treatment, and the medication of the medicine for the treatment, includes the habitation of the body. Such duty of care is based on the level of medical practice performed in the field of clinical medicine, such as a medical institution, at the time of the medical practice. The level of medical care refers to the so-called medical consciousness generally known and recognized at the time of the medical practice, and thus, should be identified at a normative level in light of the medical environment and conditions, and the peculiarity of the medical practice (see, e.g., Supreme Court Decision 2004Da64067, Apr. 29, 2005).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On January 22, 2011, the deceased, who was hospitalized in the Defendant Hospital and was receiving a tuberculosis treatment due to an anti- tuberculosis medication, discharged on February 9, 2011 when the symptoms, such as the increase in the blostal cirr value in the 4th anti- tuberculosis medication (pirpirpirpirosis, cirrosis, spirrosis, spirrosis, spirosis, spirosis, etc., of which the blostal cirr value had been raised, and the cirrosis and b

(2) On February 14, 2011, the Deceased was admitted to the Defendant Hospital on the ground of the symptoms revealed in the heat, and the medical professionals of the Defendant Hospital ordered the suspension of taking back of the prudentia, which began to be administered from the last 4th anti- tuberculosis as prescribed, and had the Deceased returned to the deceased on February 17, 201. (3) On the other hand, on February 14, 201, the Deceased returned to the deceased on the ground that the body temperature was 37°C at the time of receiving medical treatment at the infectious department at the time of being treated in the infection (medical records and internal medicine records) and on the same day according to infection and prescription, 11:27 as a result of blood examination extracted from 11:27 on the same day.

(4) In addition, the Defendant asserted that he reached 1730/d on February 14, 201 from the preparatory documents stated on the date of closing the argument of the lower court (as of January 19, 2016) to the deceased’s ordinary time on February 14, 201. The Defendant’s application for the request for the medical record appraisal as of May 13, 201 was accompanied by the result of blood collected from the deceased on February 14, 201 in accordance with the records of medical treatment and the medical record and the prescription in the horse in the Defendant hospital on February 14, 2011.

(5) On February 16, 201, the Deceased, who was in the emergency room of the Defendant Hospital, was fluored from the beginning of the 12:0 p.m. on the Do newsletter on February 16, 2011, and the Do newsletter began at around 12:0 p.m. when there was no symptoms, and around that time, the bring distance came from the 17:0 p.m. to the effect that the gring distance between both sides and the surrounding areas were fluored by both girrosiss, area, and galtogram symptoms.

(6) Since the rapid aggravation of the state of the deceased, around 19:57 on February 16, 201, the deceased did not respond to the end of the medical team after having returned from the MRI Inspection room. At around 21:05, the deceased was omitted from a quasi-complosion condition, and at around 23:00, the deceased was transferred to a patient's room because self-sufficiency was impossible. Ultimately, the deceased was judged as brain death on February 21, 2011, and died from cerebral disease on August 1, 201. Meanwhile, at the results of the MRI inspection conducted on February 16, 2011, the deceased was presumed to have overall cerebral damage.

(7) The result of the medical record appraisal entrustment to the president of H Hospital (Insurgic Amal Amara) and the fact-finding consultation division may cause a psychotropic side effect, including cerebral Amar, administered to the deceased. However, the period of hospitalization of the deceased (from January 22, 2011 to February 9, 201) and on February 14, 2011, there was no symptoms to suspect cerebral Amal Amala, and there was no symptoms to suspect cerebral Amala, and thus, it is difficult for the medical personnel of the Defendant hospital to predict cerebral Amal disease of the deceased. Furthermore, the medical personnel at the Defendant hospital did not fall under the examination opinion that should give priority to the deceased at the time of the suspension of cerebral Amala’s cerebral Amala, and it should be presumed that there was no evidence to prove cerebral Amal Amal Amala’s senal Amala in a reasonable situation subsequent to the 3thal Amosis.

(8) The above purport of the medical record appraisal request for the Director of the Jmedical Center is also expressed, and the case where the symptoms rapidly aggravated within several hours after the patient was in an emergency room due to the toxic side effects of anti- tuberculosis, such as the deceased, is a very rare case in the actual clinical trials. However, given that the deceased’s leuksis was very serious, there was an abstinence in the hospital, which would have taken into account the risk of infection, etc., and thus, the deceased’s lethy disease had taken place upon the patient’s treatment. Meanwhile, from the examination of the brain lethosis of the deceased, which took effect on February 16, 201, there was no suspicion of infection.

(9) The ' Tuberculosis Medical Guidelines' of the Korea Centers for Disease Control and Prevention established after several months at the time when the Deceased was receiving tuberculosis treatment provides that 'clurine' may cause two pains, depressions, fears, and apprehensions due to the most shaking side effects of 'pulphical disorder' in the case of clurine, and may cause mental disorder, liveric symptoms, and liveric symptoms in severe cases. The side effects of the mid-term boundary occur more frequently when using clurine from patients with disorder in alcohol addiction, depression, unest, uneasiness, mental disorder, liveric development, and new function. Therefore, when using clurine to the patient with a large risk of side effects, 'it shall be trained immediately to the medical personnel if the patient appears to have a depression or character.' However, in the case of other anti- tuberculosis administered to the Deceased, it does not interfere with the hirrosis or serious side effects.

C. For the following reasons, the lower court determined that the Defendant, the employer of the medical staff at Defendant Hospital, was liable to compensate the deceased and the Plaintiffs for the damages incurred.

(1) On February 14, 2011, the Deceased complained of a high-calorie and misleading symptoms again at the time when he was admitted to the Defendant Hospital, and the Madneum mar value (940/10), which was the lowest figure of the hospitalization period, was lower than 100/10, and was vulnerable to infection, should have considered the hospitalized treatment. At that time, the Deceased had any medical signs indicating that the health condition rapidly aggravated within two to three days due to the side effects of anti- tuberculosis and that led to imminent danger leading to brain death, and thus, the medical personnel at the Defendant Hospital did not fulfill its duty of care to require the Deceased to return home without taking measures, such as re-hospitalize.

(2) At the time of discharge by the medical personnel of the Defendant Hospital, the deceased did not sufficiently guide and explain the appropriate amount of tuberculosis medication, the method of medication, and the method of responding to the recurrence of side effects.

D. However, in light of the aforementioned legal principles and circumstances, the lower court’s aforementioned determination is difficult to accept for the following reasons.

(1) On February 14, 2011, the lower court, in relation to the Defendant’s assertion that he reached 1730/km of the deceased’s normal leuk blood cell deposit, ordered the Defendant to specifically examine the status at the time of the deceased, such as questioning whether the result of the examination attached to the Defendant’s written application for the medical record appraisal (the result of the examination attached to the Defendant’s blood collected on February 14, 201 according to the mathy and prescription inside the Defendant hospital) should be submitted as evidence.

(2) At the time of hospitalization until February 9, 201 and February 14, 2011, it cannot be deemed that there was medical signs leading to brain death only on the following grounds: (a) symptoms of the deceased complaining against the Defendant Hospital’s medical team; and (b) blood examination result of the deceased on February 14, 2011.

(3) Therefore, it is difficult to deem that there was a breach of the duty of care on February 14, 201 that the Defendant hospital’s medical personnel returned to the Republic of Korea by having the deceased return to the Republic of Korea after three days without re-hospitalizeing the deceased.

(4) Even if a person re-hospitalizes the deceased due to the risk of infection due to the death of the deceased’s climatic dystrophism, it is difficult to view that the deceased’s infection or infection was caused, and thus, it is difficult to view that the deceased’s serious consequence and causal relationship was caused.

(5) Even if the medical personnel at Defendant Hospital did not sufficiently guide and explain the deceased at the time of discharge the appropriate amount of anti- tuberculosis medication and the method of medication, whether the deceased was administered in a way different from that prescribed by the medical personnel at Defendant Hospital, and thereby, the deceased’s brain damage and death therefrom.

Without examining whether the result occurred or not, the defendant hospital cannot be held liable for any damage to life or body on the ground of the violation of the duty to guide the medical staff of the defendant hospital.

(6) It is difficult to view that brain damage caused to the deceased and the result of the death therefrom are the typical and representative side effects of psychotropic tuberculosis that was administered to the deceased at the time, such as clurine, etc.

(7) It cannot be deemed that the Deceased had a high risk of causing side effects on drilling, or that there was symptoms of depression or character to the Deceased. Therefore, it cannot be deemed that the Defendant hospital’s medical team had a duty of care to explain the deceased’s actual side effects, specific symptoms, and response measures.

E. Nevertheless, the lower court erred by misapprehending the legal doctrine on negligence and causation in the medical lawsuit, on the grounds as stated in its reasoning, since it acknowledged Defendant Hospital’s medical care breach.

3. Conclusion

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiffs’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jong-hee

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan