2014No1214 A. Violation of the Medical Service Act

B. Violation of the Pharmaceutical Affairs Act

1. A.

2.2.B

3.(a) C.

4.(b)(D)

Defendants

Park Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-Jin-P

Law Firm Man (for all the defendants)

Attorneys Kim Gyeong-won, Gyeong-jin

Suwon District Court Decision 2013 High Court Decision 1721 Decided February 13, 2014

August 29, 2014

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles (defendants)

1) As to the violation of the Medical Service Act of Defendant A, C, and D (crimes 1 and 2), the lower court determined that the act of Defendant A’s conducting a first-wave test solely without the presence of, or real-time guidance on, Defendant C and D constitutes a violation of the Medical Service Act, on the ground that, at the same time, the radiation company is possible to view photographs at the same space where the doctor’s diagnosis and specific guidance are given in real time.

However, the judgment of the court below that the first-wave test and the first-wave test should be conducted concurrently because it is possible for a physician to read and diagnose the above images after storing the second-wave image taken by a radiationr in the storage device. Thus, there is no medical basis for the judgment of the court below that the first-wave test should be conducted concurrently. Defendant C and D pointed out the parts necessary for the first-wave test among the checkup records of the inspector, and instructed Defendant A to instruct and supervise Defendant A to take the first-wave film, and if there is any error in the images taken by Defendant A, the specific direction and supervision of Defendant A, such as ordering additional activation, etc., and the diagnosis was conducted directly after reporting the images transmitted by Defendant A by recording the second speech name. Thus, even if Defendant A alone took the second-wave film, it does not constitute a violation of the Medical Service Act.

2) As to the violation of the Pharmaceutical Affairs Act by Defendant B and D (criminal facts 3 and 4), a assistant nurse M merely assisted the preparation of drugs packaging, etc. under the specific instruction and supervision of Defendant B and Defendant D, a pharmacist, and under the supervision and supervision of Defendant D, a doctor. However, the lower court erred by misapprehending the legal doctrine on the preparation of drugs under the Pharmaceutical Affairs Act, thereby recognizing Defendant B and D as violating the Pharmaceutical Affairs Act. However, the lower court erred by misapprehending the legal doctrine on the preparation of drugs under

Each sentence sentenced by the court below to the above Defendants (Defendant B: KRW 2 million, Defendant D: KRW 10 million) is too unreasonable.

2. Determination on the grounds for appeal

A. As to the assertion of mistake of facts or misapprehension of legal principles

1) As to the assertion regarding the violation of the Medical Service Act by Defendant A, C, and D

A) The judgment of the court below

The above Defendants asserted the same purport as the grounds for appeal in the court below. The court below found the adopted evidence and recognized the facts as stated in its reasoning, and determined that the act of Defendant A, a doctor of the first instance, or Defendant C’s first-time instruction or supervision, by stating the following circumstances known in light of the facts and the reasoning of its ruling, is difficult to deem that specific direction and supervision by Defendant C and D have been conducted after the lapse of the inspection period. Since it is difficult to see accurate reading, immediately and at the same time, diagnosis and reading should be conducted at the same time. Since the doctor directly inspects the patient’s body parts and conducts real-time diagnosis based on medical knowledge and medical knowledge, the act of the doctor to accurately know the patient’s medical knowledge and medical capacity constitutes medical practice to be conducted. However, in full view of the following circumstances, the court below determined that the above Defendants’ act of delivery of radiation pictures to Defendant C and the result of the examination conducted independently from Defendant C’s first-time instruction or guidance to the above Defendants C and the result of the examination constituted the above Defendants’ interview and password system.

B) Determination of the immediate deliberation

The above Defendants and defense counsel argued to the effect that the crime of violation of the Medical Service Act is not established since the above Defendants and defense counsel had the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court below, especially Defendant A did not directly see the rest of the first-wave film other than the stop screen which was stored as data such as that Defendant C, D could not be seen as being directly conducted, and as long as Defendant C, C, and D prepared the result of the first-wave test based on the data delivered by Defendant A, Defendant C, and D, the doctor’s instruction includes not only the first-wave test but also the follow-up instruction, such as directly designating the part of the prosecutor’s order, reading the image, and giving follow-up guidance, etc., and Defendant C and D were also subject to prior and subsequent guidance. However, the above Defendants’ assertion to the effect that there was no possibility that Defendant C and D did not have any intention to commit the crime of violation of the Medical Service Act after considering the following facts and circumstances acknowledged by the court below’s evidence.

① In most cases, Defendant C and D’s “oly prepared by each inspector” is merely an indication that the inspector specified the parts of the body for which he/she requested the inspection of the early wave, and even “oly recorded the individual instructions” is merely an indication of the part of the body for which he/she requested the inspection of the early wave, and thus, it is difficult to view that the specific direction and supervision by Defendant D and C was conducted.

② According to the PACSPUS system established at G hospital at the time of the instant case, Defendant A, while conducting a super-wave test, is required to capture and store a stop screen through a prescribed operation act whenever it is deemed necessary as a reading material. Defendant C and D merely received the above stop screen stored by Defendant A and the opinions based thereon.

③ After conducting a first-wave test, Defendant A sent his opinion to Defendant C and D, stating his opinion on the stop screen, and submitted it to Defendant C and D. There were diverse types of illness, such as 'regional opinion prepared by Defendant A', 'full-time stand-off stand-off stand-off, 'high-down back-down back-down', 'high-down back-type back-wing, 'all-round', 'defes-wing back-type', 'defes-wing back-type', 'defes-type, 'profes-type proof', and 'multi-profes-type refes-winging-type'.

④ Based on the opinions presented by Defendant D and C, most of the above written opinions are cited as is. The above Defendants summary and arrange most of the opinions entered by Defendant A as they are, and output them as the result of the inspection, and recognize the facts that were delivered to the inspectors.

⑤ Defendant D made a decision on medical treatment by Defendant A by stating that the name of disease, such as Gyeong-do and Gyeong-do Jeon-do, prepared by Defendant A, should be determined based on medical knowledge. However, since Defendant A was aware of the medical knowledge due to a large number of early-wave tests, Defendant A made a statement to the effect that the name of disease was included in the name of disease.

6) The above Defendants and the defense counsel asserted that AC, a foundation, had a radiation company conduct a stopy test and prepare a stopy test, but the PAC program established in AC, if a radiation company photographs the stopy image and enters the opinions on each individual image, the prosecutor conducts the inspection by means of ordering correction through telephone or s to report the screen image taken by a specialist connected to the above program, and could have perused the VEWER function at any time, in light of the fact that the PA program was established in AC, and that the PA program is different from the facts of the instant case.

2) As to the assertion on the violation of the Pharmaceutical Affairs Act by Defendant B and D

A) The judgment of the court below

After examining the adopted evidence and recognizing the facts and circumstances as stated in its reasoning, the lower court determined that it is difficult to view that there were circumstances to deem that the Defendants were given specific and prompt command and supervision, or that such direction and supervision could have been given, on the preparation of drugs by assistant nurses M, and that such an act by M was merely a mere mere mere mere assist in the preparation of drugs by the Defendants.

B) Determination of the immediate deliberation

Although the above Defendants and defense counsel acknowledged the facts that the assistant nurse M distributed, mixed, and packaged each drug listed in this part of the facts charged, they dispute to the effect that the above act was merely a preparation assistant, and even if it constitutes a preparation assistant, Defendant D, who is a pharmacist, was in charge of the specific and immediate direction and supervision of Defendant B or doctor.

The above defendants and defense counsel claimed that they conducted the preparation of a drug through a series of processes, such as the examination of prescription, the examination of prescription, the examination of the drug's volume, the confirmation of the volume of the drug placed at issue, the confirmation of the validity of the drug to be used, the separation and distribution of drugs, the separation and packaging of the drugs, the tallying, and the tallying of the drugs. The above defendants asserted that the above defendants directly carried out the remaining courses and that M have only take charge of the distribution and packing of drugs corresponding to the preparation of drugs.

Pursuant to the definition of Article 2, subparagraph 11 of the Pharmaceutical Affairs Act, the term "dispensing drugs" means preparing drugs for the purpose of treating or preventing a certain disease for a specific person in accordance with a specific usage, by mixing two or more drugs or dividing one medicine into certain quantities according to a specific prescription. Thus, in light of the definition of Article 2, the separation, distribution, and mixing of drugs performed by M shall not be deemed as the most essential part in preparing the drugs prescribed by a specific person.

In addition, the court below duly adopted and examined the following circumstances. ① G hospital operated by Defendant D had 272 beds and the average number of patients reached 227. Employees had 27 doctors, 1 pharmacist, nurses, and medical technicians, etc. ② When the investigative agency prescribed the above, M stated that he prepared medicines. The court below stated that the investigative agency directly prepared medicines. The court below stated that the Defendants made such statements to the effect that the preparation of medicines was done by mixing medicines or dividing them into a certain quantity. ③ Defendant B prepared a confirmation document that the above Defendants prepared medicines instead of an assistant nurse upon investigation by the public officials in charge of health at the time of the so-called the so-called "Ma" without any specific instruction or supervision by the above Defendant 2, and that it was difficult to see that the above pharmaceutical officer failed to separate the preparation of medicines from his assistant, or that MD's preparation of medicines was conducted without any specific instruction or supervision by the Director of GD, and that it was difficult to see that the above Defendant's prescription was prepared by mixing them with the above details of the medicines.

B. Determination of the assertion of unfair sentencing on the assertion of unfair sentencing (defendant B, D), together with the assertion of unfair sentencing on Defendant B, and D. From February 2012 to June 201 of the same year, at G hospital more than 50 primary inspections were conducted each day from February 2012 to June of the same year, and the number of violations of the Pharmaceutical Affairs Act exceeds 1,000 times. Diagnosis of diseases and the preparation of medicines exceeds 1,00 times. There is a need to prevent the recurrence of the instant crime, which was committed by a radiation company and assistant nurse, solely with the diagnosis of the ultra-frequency test image and the preparation of taking medicines, and the need to prevent the recurrence of the instant crime. G hospital appears to have obtained economic benefits by having the above company take charge of the ultra-wave test of radiation company. In particular, Defendant D had been punished by a fine and, in light of the fact that the above Defendants had the history of punishment under the Medical Service Act, Defendant D’s age, character and conduct, motive, motive and consequence of the instant crime, and the aforementioned Defendants’ allegation of sentencing.

3. Conclusion

Inasmuch as the Defendants’ appeal is groundless, all of the appeals are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, the Korean Judge;

Judge New Date; and

Judges Yoon Dok-be