[1] Whether the provisions of each subparagraph of Article 15(1) of the Enforcement Rule of the Medical Service Act, which provides for the scope and preservation period of medical records, etc. to be preserved by medical personnel, etc., are limited and listed (affirmative)

[2] Whether a portrait-wave test photograph is applied mutatis mutandis to a radioactive photograph as provided by Article 15(1)6 of the Enforcement Rule of the Medical Service Act (negative)

[3] The case holding that a disposition of suspending a medical license for 15 days was unlawful in a case where a general hospital worker and a doctor did not conduct a first-wave test on patients who were within the delivery room and did not preserve a second-wave photograph

[1] Article 22(2) of the Medical Service Act delegates the scope and preservation period of the medical records, etc. that a medical person, etc. has to preserve to the Enforcement Rule, and accordingly, the provisions of each subparagraph of Article 15(1) through (9) of the Enforcement Rule of the Medical Service Act shall be limited and listed in light of the following: (a) the provisions and forms of each of the above provisions that specify the records concerning medical treatment to be preserved in detail; and (b) the scope of the records that a person is obligated to preserve in the position of a medical person who is a criminal; and (c) further, the Medical Service Act provides that not only administrative sanctions but also criminal punishment against a medical person who has not preserved the records, etc. in violation of Article 22(2) of the Medical Service Act, in addition, the provisions of each subparagraph of Article 15(1) of the Enforcement Rule of the Medical Service Act shall be limited and listed.

[2] In light of the difference between the radiation inspection and its function, principle, and operating method, it cannot be deemed that the shot-wave test photograph is applied mutatis mutandis to the radiation photograph as stipulated under Article 15(1)6 of the Enforcement Rule of the Medical Service Act solely on the ground that the meaning and preservation of the shot-wave test photograph is very important because it contains objective information on the status of a patient and a fetus, along with the purport of Article 22 of the Medical Service Act.

[3] The case holding that in a case where a disposition of suspending a medical license for 15 days on the ground of a violation of Article 22(2) of the Medical Service Act was taken on the ground that a medical doctor, who worked as a general hospital worker in a mountain unit or in a mountain unit, did not keep a first-wave photograph for the patient who was within the village room, the provision of each subparagraph of Article 15(1) of the Enforcement Rule of the Medical Service Act, which provides for the scope and preservation period of medical records, is limited and listed, and the first-wave medical prosecutor cannot be deemed to have been applied mutatis mutandis to a radiation photo under Article 15(1)6 of the above Enforcement Rule, on the ground that Article 15(1) of the above Enforcement Rule, on the ground that the first-wave medical examination cannot be deemed to have been applied mutatis mutandis to a radiation photo different from its function, principle, operation method, etc., so long as the first-wave medical doctor did not specify it as one of the records pertaining to medical treatment to preserve a second-wave photo under Article 22(2) of the Medical Service Act.

[1] Article 22(2) of the Medical Service Act, Article 15(1) of the Enforcement Rule of the Medical Service Act / [2] Article 15(1)6 of the Enforcement Rule of the Medical Service Act / [3] Article 22(2) of the Medical Service Act, Article 15(1) of the Enforcement Rule of the Medical Service Act

Plaintiff (Law Firm Cho & Lee, Attorneys Jeon Ho-sung et al., Counsel for the plaintiff-appellant)

The Minister of Health and Welfare

September 17, 2009

1. The defendant's disposition of suspending the qualification of doctor against the plaintiff on July 14, 2009 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts shall not be disputed between the parties, or may be recognized by comprehensively taking into account the descriptions in subparagraph 1, subparagraph 2-1, and subparagraph 2-2, and the overall purport of arguments:

A. The plaintiff from March 2007, is a doctor who had been working as an industrial woman in the ○ Hospital located in Yeongdeungpo-gu Seoul (Dong and lot number omitted).

B. On July 14, 2009, the Defendant rendered a disposition to suspend the Plaintiff’s medical license for 15 days from August 1, 2009 to August 15, 2009 by applying the provisions of Article 66(1)8 (Article 66(1) of the Medical Service Act (Article 66(3)) and [Attachment Table] of the Rules on Administrative Measures Concerning Medical Treatment, on the ground that the Plaintiff failed to preserve the Non-Party’s portrait photographs in violation of Article 22 of the Medical Service Act (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The first-wave test photographs do not constitute medical records, etc. that assume the duty to preserve under Article 22(2) of the Medical Service Act and Article 15(1) of the Enforcement Rule of the Medical Service Act. Thus, the instant disposition based on the premise that the first-wave test pictures fall under the above provision’s medical records, etc. is unlawful.

(2) On December 8, 2008, the Plaintiff filed a heavy pain with the Nonparty, who was inside the delivery room of ○○ Hospital, working for the Plaintiff at the time of checking the condition of the fetus before delivery. As such, the instant disposition is unlawful since it deviatess from and abused discretion by the instant measure, in light of the fact that it is unreasonable to view that both the Plaintiff and the Nonparty, who was in the delivery room of ○○ Hospital, were in the process of checking the condition of the fetus before delivery, and instead recorded the result of the test by using the part-time mobile string device, where the result of the examination is not stored instead of the initial stringer of the outpatient-type clinic automatically stored in the hospital central computer system (No. 3-2), and instead, recording the result of the test (No. 3-2).

B. Relevant statutes

Medical Service Act

Article 22 (Medical Records, etc.)

(1) Each medical person shall keep the records of medical treatment, assistance in childbirth, nursing records, and other records concerning medical treatment (hereinafter referred to as "medical records, etc.") and shall record and sign the matters and opinions concerning his/her medical practice in detail.

(2) Each medical person or founder of a medical institution shall preserve medical records, etc. (including electronic medical records under Article 23 (1); hereafter the same shall apply in Article 40 (2)) as prescribed by Ordinance of the Ministry for Health, Welfare and Family Affairs.

Article 66 (Suspension, etc. of Qualification)

(1) If a medical person falls under any of the following subparagraphs, the Minister for Health, Welfare and Family Affairs may suspend his/her license for a period not exceeding one year. In such cases, matters which need to be judged in connection with medical technology may be determined after hearing the opinions

8. When he/she has violated this Act or any order issued under this Act.

Article 90 (Penal Provisions)

Any person who violates Articles 16 (1) and (2), 17 (3) and (4), 18 (4), 21 (2) and (3), 22, 26, 27 (2), 33 (1) and (3) (including cases applied mutatis mutandis in Article 82 (3)) and (5) (limited to cases of permission), the main sentence of Article 35 (1), Articles 41, 42 (1), 48 (3) and (4), and 77 (2), or who violates an order under Article 63, or who provides medical services under employment of a person who is not entitled to establish a medical institution, shall be punished by a fine not exceeding three million won.

Enforcement Regulations of the Medical Service Act

Article 15 (Preservation of Records concerning Medical Treatment)

(1) Each founder or manager of a medical institution shall preserve records on medical treatment for the following periods:

1. List of patients: Five years;

2. Medical records: Ten years;

3. Prescription: 2 years.

4. Records of operations: Ten years;

5. Records of inspection: Five years; and

6. Radiation photographs and written opinions thereon: Five years.

7. Nursing record: Five years; and

8. Mountain records: Five years;

9. Duplicate of a medical certificate, etc. (the medical certificate, death certificate, corpse autopsy report, etc. shall be preserved separately): Three years.

Regulations on Administrative Measures Concerning Medical Treatment

Article 4 (Criteria for Administrative Disposition)

The criteria for administrative dispositions under Article 68 of the Medical Service Act and Article 25 of the Medical Technicians, etc. Act shall be as specified in the attached Table.

[Attachment] Criteria for Administrative Disposition

1. Common standards:

(c) When a violation of Acts and subordinate statutes related to medical treatment falls under any of the following subparagraphs, the administrative agency may reduce the relevant disposition to the extent that the relevant disposition is mitigated in consideration of the circumstances, notwithstanding the criteria for administrative disposition prescribed by these Rules:

When a prosecutor conducts a disposition of suspension of indictment on the relevant case (1) of qualification, duties or business suspension subject to mitigation included in the main sentence, the relevant disposition standards shall be reduced within the scope of 1/2 of the relevant disposition standards.

2. Individual standards:

(a) Where a medical person violates the Medical Service Act and the Enforcement Decree of the Medical Service Act;

When medical records, etc. are falsely prepared or preserved in violation of Article 22 of the Act (15) of the Act, the criteria for administrative disposition based on the violation of the Act included in the main sentence, suspension of qualification under Article 66 (1) 3 and 8 of the Act shall be

C. Determination

Article 22(1) of the Medical Service Act provides that “A medical person shall keep the records of medical treatment and other medical treatment (hereinafter “medical records, etc.”) and record and sign the matters and opinions concerning the relevant medical treatment.” Article 22(2) of the same Act provides that “A medical person or founder of a medical institution shall preserve the records of medical treatment, etc. as prescribed by Ordinance of the Ministry for Health, Welfare and Family Affairs.” Article 15(1) of the Enforcement Rule of the Medical Service Act provides that “A medical person or founder of a medical institution shall preserve the records of medical treatment, etc. as prescribed by Ordinance of the Ministry for Health, Welfare and Family Affairs.” Article 22(2) of the Medical Service Act provides that “The provision of Article 15(1)2 of the Enforcement Rule of the Medical Service Act provides that a person shall keep the records of medical treatment under subparagraphs 1 through 9 of Article 22(2) and other records of medical treatment (which appears to provide for the consultation of medical treatment under Article 15(1) of the Enforcement Rule of the Medical Service Act) and shall keep the records of individual medical treatment (Article 60).

The purport of Article 22 of the Medical Service Act, which provides for the duty of preparing and preserving medical records, etc., is to allow a doctor in charge of medical treatment to accurately record and preserve information on the patient’s condition and the progress of medical treatment without omitting such information, so that the patient can be provided with appropriate medical services and allow other employees in charge of medical treatment to use such information as data to determine the appropriateness of the medical practice after the completion of the medical practice (see Supreme Court Decision 97Do2124, Jan. 23, 1998).

In light of the above, Article 22(2) of the Medical Service Act delegates the scope of medical records, etc. to be preserved by medical personnel, etc. and the preservation period thereof to the Enforcement Rule, and accordingly, the provisions of each subparagraph of Article 15(1) through (9) of the Enforcement Rule of the Medical Service Act, which specify the records on medical treatment to be preserved in accordance with Articles 15(1)1 through 9, are very important to make it possible to predict the scope of medical records that are responsible for the preservation of records in light of the form of the above provision, and other provisions of each other, which provide the records on medical records that are broad from the standpoint of the medical personnel who is the offender, and as seen above, the Medical Service Act allows not only administrative sanctions but also criminal punishment against the medical personnel who has not preserved medical records, etc. in violation of Article 22(2) of the Medical Service Act.

In addition, an ultra-wave inspection is different from a radiation inspection and its function, principle, operation method, etc. Thus, it cannot be deemed that a shot-wave inspection photograph is applied mutatis mutandis to a radioactive photo under Article 15 (1) 6 of the Enforcement Rule of the Medical Service Act, as asserted by the Defendant, solely on the grounds that the aforementioned purpose of Article 22 of the Medical Service Act includes objective information on the status of a patient and a fetus, and that the meaning and preservation of the shot-wave photographs is very high.

Therefore, insofar as the Plaintiff failed to preserve the portrait-wave photographs unless it is specified as one of the records on medical treatment to be preserved under Article 15(1) of the Enforcement Rule of the Medical Service Act, it cannot be deemed that the Plaintiff violated the duty of preservation under Article 22(2) of the Medical Service Act on the ground that the Plaintiff did not preserve the portrait photographs, and the instant disposition based on such premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judge Jeong-sung (Presiding Judge)