Loss of smell due to nasal gauze left after plastic surgery... "Compensate 25 million won"

Conflicting Rulings in 1st and 2nd Trials on Labor Capacity Loss Rate Standard
Supreme Court Upholds Lower Court's Decision... "No Legal Misunderstanding"

A plastic surgeon who performed surgery on a patient who lost their sense of smell due to gauze left inside the nose after rhinoplasty was ordered by the Supreme Court to pay approximately 25 million KRW. The Supreme Court upheld the second trial court's decision, which set a lower rate of labor capacity loss for the patient with anosmia than the first trial court.

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The Supreme Court's Second Division (Presiding Justice Cheon Dae-yeop) announced on the 5th that it affirmed the appellate court's ruling ordering specialist B to pay patient A about 25 million KRW in damages in the final appeal trial of a compensation lawsuit filed by A against B.

In July 2016, A underwent plastic surgery at B's plastic surgery clinic. However, after the surgery, A experienced persistent nasal pain and breathing difficulties and visited an otolaryngologist. The diagnosis revealed gauze left inside A's nose that had not been removed, causing inflammation in the affected area. Despite receiving treatment at the otolaryngology clinic for about three months, A's anosmia, the inability to smell, persisted.

Subsequently, A filed a damage compensation lawsuit against B seeking approximately 80 million KRW.

Both the first and second trial courts recognized the causal relationship between A's anosmia and the gauze left inside the nose. However, while acknowledging that the gauze caused nasal infection, swelling, nasal deformity, and anosmia, the courts limited B's liability to 60%, citing that A did not receive recommended treatment at a higher-level hospital as advised by the otolaryngologist.

The point of disagreement between the first and second trial courts was the calculation of A's labor capacity loss rate due to anosmia. The labor capacity loss rate is an indicator expressed as a percentage that measures the extent of lost work ability due to sequelae. This rate also affects the amount of damages awarded.

The first trial court calculated A's labor capacity loss rate at 15% and ordered B to pay about 46 million KRW in damages, based on the Enforcement Decree of the State Compensation Act. In contrast, the second trial court reduced A's labor capacity loss rate to 3%, decreasing the compensation amount to approximately 25 million KRW.

The second trial court based its ruling on the Korean Medical Association's Disability Evaluation Criteria, stating, "The Korean Medical Association's Disability Evaluation Criteria are a reasonable and systematic standard suited to the occupational distribution in our country," and added, "The administrative convenience standard in the Enforcement Decree's annex table for determining compensation amounts by state compensation agencies cannot serve as an alternative."

The Supreme Court's ruling on the 5th was consistent with the appellate court. The Supreme Court's full bench dismissed the appeal, stating, "There is no error in the appellate court's application of the law regarding the calculation of labor capacity loss rate that would affect the judgment."

This content was produced with the assistance of AI translation services.