Unjustified death of developmentally disabled person due to medical accident “Please ask the court to reveal the truth”

Died 9 days after surgery due to pulmonary embolism after ankle fracture surgery.
“Even if it was just a good explanation” ‥Bereaved family claims damages for violation of duty of care and explanation

“My son, who was healthy, passed away due to the aftereffects of what was said to be a simple ankle fracture surgery. However, no one on the medical staff apologized or took responsibility. It is even more unfair and heartbreaking to think that the aftereffects could have been prevented. To alleviate my son’s injustice, I would like to hold those who did not apologize legally accountable.”

The father of the deceased, who left his son Kim Dong-ho devastated due to pulmonary embolism, a side effect of the surgery after undergoing surgery for an ankle fracture, made this appeal ahead of the first hearing of the lawsuit.

The Coalition for the Prohibition of Discrimination against Persons with Disabilities (hereinafter referred to as Jangchuryeon) and the People First Seoul Center held a press conference in front of the Bucheon Branch of the Incheon District Court at 10:30 a.m. on the 12th, about 30 minutes before the first hearing in the lawsuit for compensation for the death after surgery of Dong-ho Kim, a developmentally disabled person.

According to Jangchuryun, in July 2022, Dong-ho Kim, a developmentally disabled person, suffered a fractured left ankle after falling on his way to work and underwent surgical surgery. After undergoing surgery at Hospital A, the Oriental Medicine Hospital transferred him to Hospital B for recuperation, but he died 9 days after the surgery.

The autopsy revealed that the cause of death was pulmonary embolism, a sequela of surgery. The bereaved family claimed that there were various problems that led to Dong-ho's death, such as not properly communicating the post-surgery progress and not properly confirming the person's situation because he was developmentally disabled.

“Dongho, who was healthy and had a lot of dreams, left us without warning after undergoing surgery for an ankle fracture that was said to be simple. Our family is living in an unbelievable and devastated reality with indescribable sadness. When I think of that time, I regret it so much, and when I think of my son, I feel so sorry.”

“Even though my son passed away like that, no one has apologized and is not willing to take responsibility and is just trying to avoid it. If Dong-ho had explained the precursor symptoms of pulmonary embolism in detail to himself and his family and had been actively tested or treated, would Dong-ho have gone to heaven in vain like this? I feel even more sad and wronged because I think that prevention might have been possible.” (Father of the deceased Dong-ho Kim)

Accordingly, the bereaved family filed a lawsuit against Hospital A and Hospital B on July 26, 2023, claiming damages due to medical negligence that violated the duty of care and duty of explanation for Dong-ho Kim, a developmentally disabled person, saying, “We would like to hold those who did not even apologize for the death of our son legally responsible.”

Attorney Choi Bo-yoon of Daeryun Law Firm, the legal representative in this case, emphasized, “The medical staff’s explanation is an important starting point that leads to preventive measures, follow-up observation, and emergency treatment, which are the medical staff’s duty of care in treatment. In particular, pulmonary embolism can lead to death if the possibility or fact of its occurrence is not detected quickly, so the explanation is very important.”

The Supreme Court precedent also holds that ‘if the occurrence or possibility of pulmonary embolism was not promptly detected and prompt diagnosis and emergency treatment were missed, medical negligence will be recognized.’

However, both Hospital A, which performed surgery and hospitalization for Dong-ho Kim, and Hospital B, to which he was later transferred, did not explain at all the diagnosis of pulmonary embolism that could have occurred in the deceased or his family, typical symptoms expected to occur, and matters to be observed by the patient to prevent serious outcomes, making it a clear violation of medical law.

Attorney Choi pointed out, “The medical staff at Hospital A and Hospital B also admit that they did not explain the pulmonary embolism. However, when they entered the lawsuit, they evaded the case by saying, ‘I didn’t know because I wasn’t coughing when I was making rounds,’ and claiming, ‘It was the nurse’s handover time.’”

In addition, he claimed that the bereaved family was responsible because they were unable to recognize Kim Dong-ho's disability status because the bereaved family did not inform him, saying, "I was not aware of the status of Kim Dong-ho's disability because the guardian did not tell him about it."

However, Dong-ho's intellectual disability and the extent of his condition are revealed in his use of language and manner of speaking, to the extent that he was diagnosed with severe intellectual disability among developmental disabilities. Accordingly, Daeryun Law Firm submitted videos and transcripts of his activities while he was alive as evidence.

Attorney Choi Bo-yoon said, “The Medical Service Act does not provide for cases where decision-making ability is lacking, but disabled people should not be discriminated against under the Disability Discrimination Act,” and “Medical staff must actively provide appropriate explanations and provide medical care according to the patient’s disability.”

In particular, the Supreme Court has ruled that the medical staff must provide specific information in accordance with the patient's age, level of education, and mental and physical condition, and that they have an obligation to prepare for aftereffects by explaining in detail the methods of care and other matters necessary for health management so that the patient can independently determine and respond to the necessary measures to prevent serious consequences in accordance with the patient's circumstances.

He continued, “The claims of the defendant hospitals, which appear to avoid making appropriate judgments about patients and vaguely pass on responsibility for failing to provide more detailed information to their guardians, are a violation of the Anti-Discrimination Against Persons with Disabilities Act and also run counter to the Medical Service Act and related precedents.”

Lastly, he said, “I hope that this incident will become a precedent for all disabled people, including those with developmental disabilities, to receive appropriate treatment without discrimination in the future,” and added, “I hope that the national and local government medical systems will also be improved so that all citizens will receive the best medical services.”

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