When must a doctor honour a patient's refusal of a blood transfusion? Decision 2009Do14407 on self-determination of a value equal to life

Question

Where a patient expressly refuses blood transfusion and consents to surgery on the premise that no transfusion will be given, and an emergency arises during the operation in which the patient's life is at risk unless a transfusion is given, what must the doctor take into account in treating the patient? When is the patient's right of self-determination to refuse transfusion to be regarded as equal in value to life? What must be in place for the refusal to be a valid exercise of that right? And what duties of care apply when surgery is performed without transfusion?

Decision 2009Do14407 raises that question in a criminal case on a charge of negligent homicide in the course of business under Article 268 of the Criminal Act. The defendant, an orthopaedic surgeon, performed an artificial hip joint replacement without transfusion on a 62-year-old patient who was a Jehovah's Witness and had submitted a written waiver of liability concerning transfusion. The patient died of pulmonary oedema caused by massive blood loss, and the prosecution appealed against the acquittal.

Material to check

The provisions the decision cites are Article 10 and Article 12 of the Constitution, Article 24 of the Criminal Act, under which an act that harms an interest of a person who can dispose of it, with that person's consent, is not punishable unless a special provision of law provides otherwise, and Article 268 of the Criminal Act, which punishes negligent homicide or bodily harm in the course of business or by gross negligence with imprisonment of up to five years or a fine of up to 20 million won in its current text. The decision also cites Article 6 of the Emergency Medical Care Act, under which emergency medical workers must attend immediately to an emergency patient and may not refuse or evade emergency care without just cause, and Article 9, which requires explanation and consent for emergency care except where the patient lacks decision-making capacity or delay would endanger life or cause serious harm to body or mind. The decision further refers to Article 689(1) of the Civil Act on termination of a treatment contract.

The decision cites five earlier Supreme Court decisions: Decisions 91Da23707 and 2005Da5867 on the doctor's discretion in choosing the method of treatment; Decisions 92Da25885 and 2002Da48443 on the duty to explain and obtain consent before invasive treatment; and Decision 2009Da17417 (full bench) on the very narrow scope for a doctor's judgment to exclude from treatment specific care needed to keep the patient alive. The texts of those decisions were not consulted for this brief, so they are cited by number only.

Possible readings

Read together, Article 24 of the Criminal Act and the reasoning of Decision 2009Do14407 indicate that, absent special circumstances such as a requirement to undergo compulsory treatment, a patient may in principle decide freely whether to receive care, and may choose the specific care offered and ask for it to be changed. Where the patient's decision has excluded a particular treatment before treatment begins, the doctor cannot impose that treatment unless there are special circumstances. The decision holds that the content of the care provided under a treatment contract is given concrete form by the doctor's explanation and the patient's consent, and it grounds this in the right of self-determination protected by Article 10 of the Constitution.

A second reading derives from the value the decision places on life. Human life is the highest value under the Constitution and the premise of all basic rights. Taken together with the Criminal Act's criminalisation of assisting suicide and the Emergency Medical Care Act's purpose of preserving life and removing grave harm to body or mind, this means that, in principle, a treatment directly tied to life may not be avoided in an emergency where recovery is likely. In an emergency where the patient's life is at risk without transfusion, the principle is therefore that the doctor should consider transfusion as the method unavoidable to preserve the patient's life.

A third reading states the exception and its conditions. Where there are special circumstances, such as that the refusal of a particular treatment is not in substance aimed at suicide, that no third party's interest would be infringed by it, and that the exercise of self-determination is judged to rest on a constitutional value equal in worth to life, the patient's will must also be respected. The decision lists factors for that evaluation, including the patient's age, intellectual ability and family relations; the background, course and purpose of the patient's decision to refuse transfusion; whether the refusal is temporary or based on a firm religious or conscientious belief held over a considerable period; whether it is in substance aimed at suicide; and whether it may infringe a third party's interests. Where special circumstances make it difficult to weigh the patient's life against the patient's self-determination, a doctor who, following his or her professional conscience, acts to respect one of the two incompatible values cannot be punished. That weighing presupposes that the doctor fully explained the risks of refusing transfusion and the feasibility and safety of alternative methods; that neither the explanation nor the exercise of self-determination was flawed; that the situation that arose fell within the range anticipated in the course of the explanation and the exercise of self-determination; and that the doctor reconfirmed, in the situation that actually arose, that the patient had no wish to withdraw the refusal.

What the decisions held

Decision 2009Do14407 (26 June 2014) dismissed the prosecution's appeal and affirmed the judgment of the Gwangju District Court (judgment 2009No1622, 2 December 2009), which had upheld the first-instance acquittal on the ground that the offence charged was not proved or did not constitute a crime. The Supreme Court held that the defendant, acting on his professional conscience and respecting the deceased's self-determination, had not failed his duty of care in performing the artificial hip joint surgery without transfusion.

The decision set out the duties that apply when surgery is performed without transfusion. Where the alternative surgical method cannot fully substitute for transfusion in guarding against bleeding, so that the risk of death from excessive bleeding during surgery increases, the doctor must judge with more than ordinary care whether surgery is the best treatment for the patient. If surgery proceeds, the doctor must try to reduce that risk by taking the preparatory measures and using the surgical techniques that, under the medical standards of the time, can reduce the risk from bleeding as far as possible. If unexpected massive bleeding shows that the risk has materialised, the doctor must reconsider whether continuing despite the risk is the best treatment. A patient who chooses a method without transfusion is likely to have done so on the premise or in the expectation that the risk to life will not materialise, so continuing surgery once the risk has materialised cannot readily be regarded as care based on the patient's self-determination.

According to the facts found by the court below, the deceased, born in 1945 and then aged 62, was a Jehovah's Witness who held the teaching that one must not receive another person's blood to be more precious than life. She had been fully informed of the risk of bleeding during surgery at three other hospitals, by the defendant, and by Non-party 2, an anaesthesiologist at the university hospital who met her and her daughter the day before surgery and confirmed her refusal again immediately before the operation. On 17 December 2007 she submitted a written waiver of liability stating that her refusal of transfusion was firm, that it would not change even if she became unconscious, and that she would hold the hospital and medical staff free of civil and criminal liability. When disseminated intravascular coagulation developed during surgery as a result of excessive bleeding, the family was divided: her husband refused transfusion and her children demanded it, and no definite answer was obtained. The defendant therefore sought advice from the Jehovah's Witnesses' hospital liaison committee, stopped the operation and moved the deceased to intensive care. There transfusion was not given because her pulmonary congestion and coagulopathy might worsen, and she died. The Supreme Court held that, taken together, these circumstances amounted to special circumstances that made it difficult to weigh the deceased's life against her self-determination, so the failure to transfuse did not in itself show a breach of the duty of care. It added that one passage in the lower court's reasoning, to the effect that the patient's self-determination should in principle prevail over the doctor's duty to save life when the two directly conflict, was inappropriate, but that the rest of that reasoning was consistent with the legal rule the Court had stated.

Points left open

The decision does not decide how the evaluation of equal value applies where the refusal is temporary, is not based on a belief sustained over time, or is in substance aimed at suicide, or where third-party interests are at stake. It states the criteria but applies them only to a firm, long-held religious refusal by a competent adult, with no third-party interest at stake. It also does not fix what degree of explanation or what form of reconfirmation satisfies the preconditions in a given case.

Nor does the decision settle what happens when, in an emergency, the family's wishes differ from the patient's. The court below observed that, because self-determination is exclusively personal, the request made by the patient's daughter before surgery for a transfusion if the situation became critical could not be regarded as reversing the deceased's clear will. Who acts as surrogate decision-maker for an incompetent patient, however, remains an open question. The Court also did not review whether the defendant was negligent in judging that surgery without transfusion was possible. The prosecution raised this point in a supplementary brief filed after the deadline for the appeal brief, and the Court held that it was a new ground of appeal, which was inadmissible and not a matter for the Court to review of its own motion.

When to reconsider

We will revisit this brief if the Supreme Court rules on a refusal of transfusion that is temporary, suicide-motivated or made for an incompetent patient, if a later decision states what explanation and reconfirmation the preconditions require, or if Article 24 or Article 268 of the Criminal Act or Article 6 or Article 9 of the Emergency Medical Care Act is amended.

Statutes referred to

• 헌법 제10조, 제12조
• 형법 제24조, 제268조
• 응급의료에 관한 법률 제6조, 제9조

Decisions referred to

• 대법원 2014. 6. 26. 선고 2009도14407 판결 · Decision ledger

Verification status

All texts used for this brief were read at the National Law Information Center on 24 October 2026: the decision in its published summary and full reasons, and the current text of the provisions of the Criminal Act and the Emergency Medical Care Act that it cites. The decision also relies on the Constitution and cites five earlier Supreme Court decisions whose texts were not consulted.