Supreme Court Decision 2011Da36848 Decided February 28, 2013 about Damages

Main Issue and Holding

Whether a duty to explain was violated depriving patient’s opportunity of treatment and infringing right to self-determination if a physician in choosing a follow-up observation instead of an immediate additional test did not explain possibility of sudden deterioration of patient’s condition unlike the usual prognosis or availability of an additional test for such an occasion (negative with qualification)

Summary of Decision

Where a physician opted for a follow-up observation instead of an immediate additional test and such decision lies within a reasonable scope, even if the physician did not explain possibility of sudden deterioration of patient’s condition or availability of an additional test by considering the exceptional situation such as sudden deterioration which is not an ordinary convalescence process under the current medical standard, it cannot be viewed that the physician caused the patient’s treatment opportunity to be lost or infringed the patient’s right to self-determination in violation of the duty of explanation.

Reference Provisions Articles 750 and 751 of the Civil Act

Article 750 of the Civil Act (Definition of Torts) Any person who causes losses to or inflicts injuries on another person by an unlawful act, willfully or negligently, shall be bound to make compensation for damages arising therefrom.

Article 751 of the Civil Act (Compensation for Non-Economic Damages)

(1) A person who has injured the person, liberty or fame of another or has inflicted any mental anguish to another person shall be liable to make compensation for damages arising therefrom.

(2) The court may order the guilty party to discharge the compensation mentioned in paragraph (1) by periodical payments, and may order such guilty parties to offer reasonable security in order to insure his performance of such obligations.

Plaintiff-Appellant-Appellee Plaintiff 1 and 1 other

Defendant-Appellee-Appellant Ulsan Industrial Technology Institute and 1 other (Law Firm Donghaeng, Attorney Kim Sung-hwan, et al., Counsel for defendant-appellee-appellant)

Judgment of the court below Busan High Court Decision 2010Na9306 decided April 7, 2011

Disposition The part of the judgment below which ruled against Defendants is reversed, and this part of the case is remanded to Busan High Court. Plaintiffs’ appeals are all dismissed.

Reasoning The grounds of appeal are examined.

1. Plaintiffs’ ground of appeal

In the medical act like examination and treatment, a physician has a duty of care to take best measures for preventing risk according to the patient’s specific symptom or circumstance in light of the nature of human life, body, and health care. Physician’s foregoing duty of care is determined by the standard of a medical act practiced in the clinical medical area like medical institutions at the time of a medical act. The standard refers to common medical knowledge generally known to and recognized by ordinary physicians at the time of a medical act. It is the norm determined in light of medical examination environment, conditions, and characteristic of the medical act (seeSupreme Court Decision 2004Da13045, October 28, 2005, etc.).

Plaintiffs asserted that where the deceased appears to have light cerebral infarction according to the computed tomography (CT) scan test conducted one week after cerebral aneurysm ligation operation, neither necessary test like cerebral angiography nor necessary treatment was conducted as to cerebral infarction and cerebral edema, and thus, the Ulsan University Hospital medical team’s medical negligence caused the deceased’s death. In light of the above legal principle, the court below is justified in rejecting Plaintiffs’ assertion, in light of cerebral aneurysm characteristic, the deceased Nonparty (“the deceased”)’s symptom, and the Ulsan University Hospital medical team’s treatment as a whole.

There are no errors in the misapprehension of legal principle as to medical negligence and causation, and violation of free evaluation of evidence, etc. as otherwise asserted in the ground of appeal.

2. Defendants’ grounds of appeal

A. Physicians’ duty of explanation to patient is not limited to the operation. It occurs at every stage of treatment like test, diagnosis, treatment, etc. Physicians may be liable for solatium, etc., as to the violation of a duty of explanation to compensate for emotional suffering from loss of a patient’s opportunity to avoid by self-determination the occurrence of a significant consequence from the pertinent medical act, where a physician conducted an operation without explaining risk to a patient, and consequent results occurred since the physician failed to explain a disease’s symptom, treatment or diagnosis method, its necessity and foreseeable risk to patient in advance. Thus, the physician’s explanation does not apply to all medical processes but only to medical acts where patients are required to choose by self-determination such as invasive treatment like operation with probability of bad results or significant consequences like death. Where significant consequence to patient is not due to a physician’s invasion or where a patient’s self-determination right is not at issue, violation of a duty of explanation cannot be a ground for liability for solatium (see Supreme Court Decision 94Da27151, April 25, 1995, etc.).

A physician may administer a treatment by selecting a method which is regarded as proper according to patient’s circumstance, the current medical standard, and his/her own knowledge and experience. Unless physician’s judgment about the treatment method selection deviates from a reasonable scope, medical negligence cannot be directly acknowledged merely because a specific treatment method brings about bad results (see Supreme Court Decisions 91Da23707, May 12, 1992; 2010Da95635, June 14, 2012).

Therefore, where a physician chose a follow-up observation instead of an immediate additional test and such judgment belongs to a reasonable scope, even if a physician did not explain the possibility of sudden deterioration of patient’s condition or availability of an additional test by considering the exceptional situation such as sudden deterioration which is not an ordinary convalescence process under the current medical standard, it cannot be viewed that the physician triggered a patient’s treatment opportunity loss or invaded a patient’s self-determination right in violation of a duty of explanation.

B. The court below reasoned as follows. Defendant 2 explained cerebral infarction as operation’s side effect prior to operation to the deceased. From the deceased’s CT test of this case on May 26, 2003, 1 week after cerebral aneurysm ligation operation, he found light cerebral infraction and brain edema symptom at the brain left side basal ganglion, but did not explain to the deceased or Plaintiffs the treatment methods as well as necessity of invasive cerebral angiography for verification. Defendant 2 had a duty to explain appearance of symptom of light cerebral infarction after operation, and additional test for its verification and treatment method, but failed to do so. Thus Defendant 2 is liable for solatium to the deceased and the family since the deceased lost additional treatment opportunity and self-determination right was invaded.

C. The judgment below and evidence revealed as follows. Ischemic lesion in the follow-up brain CT test after cerebral aneurysm ligation operation is observed in many patients, but cerebral infarction symptom is rare. Cerebral infarction due to brain vessel contracture after a non-ruptured cerebral aneurysm ligation operation unaccompanied by brain subarachnoid hemorrhage is very rare and its occurrence is reported.

The deceased received a non-ruptured cerebral aneurysm ligation operation on May 20, 2003 and showed relatively good convalescence process. Amidst, he received a follow-up brain CT test. At that time, from the neurological perspective, patient’s condition was good with clear consciousness, orientation, non-decrease in muscular strength without any particular symptoms. Thus, as the court below acknowledged, from the light cerebral infarction and light brain edema at the left side basal ganglion found by the brain CT test, it is hard to foresee that the deceased will die mere within 2~3 days from the cerebral infarction progress to the left side middle cerebral artery. The Ulsan University Hospital medical team including Defendant 2 did not administer a cerebral angiography test as to the deceased promptly after the brain CT test and opted for convalescence observation. However, it cannot be viewed as deviating from the reasonable scope.

Thus, as the Ulsan University Hospital medical team including Defendant 2 was observing the deceased’s convalescence based on the brain CT opinion, it did not explain the possibility that the deceased may die from sudden severe development of cerebral infarction or availability of additional cerebral angiography test for diagnosis of brain vessel contracture. However, it cannot be said that it caused patient’s treatment opportunity loss or invaded a self-determination right. Nonetheless, the court below ordered solatium payment to Defendants on the ground of violation of duty of explanation based on the above reasons.

The judgment below erred in the misapprehension of the legal principle as to physician’s duty of explanation, which affected the judgment.

3. Conclusion

Therefore, we reverse that part of the judgment below which ruled against Defendants and the reversed portion is remanded to the court below for further proceedings consistent with this Opinion. It is decided as per Disposition by the assent of all participating Justices.

Justices

Min Il-young (Presiding Justice)

Lee In-bok

Park Poe-young (Justice in charge)

Kim Shin