In a case where Defendant (a child of 3 years of age) was indicted on charges of violating the Medical Service Act by having B perform a procedure to remove any contagious succession on the left side of the bridge of Defendant A by having her assistant nurse Eul, who is not a medical personnel, conduct a medical procedure to remove a contagious succession on the side of the bridge, after examining the patient A (the child of 3 years of age), the case holding that the above procedure was conducted as part of a medical assistance act by the Defendant under the general direction and supervision, and it does not constitute a violation of the Medical Service Act or a justifiable act that does not violate social rules, and thus, its illegality is dismissed.

The case is prosecuted for violating the Medical Service Act by having Eul conduct a procedure to remove the infectious species on the left side of the bridge by having Eul conduct a procedure to remove the contagious species on the side of the bridge after examining the patient Gap (the child of 3 years old) and diagnosing the patient Gap (the child of 3 years old), and instruct the assistant nurse Eul who is not a medical personnel.

Although the treatment of a contagious disease based on medical expertise in light of the contents and methods of the treatment, etc. is an act that could cause harm to public health and hygiene if performed by a medical person, and constitutes an act prescribed in Article 27(1) of the Medical Service Act, the case affirming the defendant's instruction and treatment as an act of guiding and supervising the defendant's non-medical assistant within the limited scope of the treatment, on the grounds that it does not constitute a violation of Article 80(2) and (3) of the former Medical Service Act (amended by Act No. 13658, Dec. 29, 2015) and Article 2(1) of the former Rules on Assistant and Medical Care Services (amended by Ordinance No. 472, Dec. 30, 2016) and thus, it is difficult to view that the above treatment is an act of guiding and supervising the defendant's non-medical assistant, or that it does not constitute an act of guiding and supervising the defendant's general medical assistant's treatment without reasonable instruction and supervision.

Articles 27(1) and 80-2 of the Medical Service Act, Article 80 of the former Medical Service Act (Amended by Act No. 13658, Dec. 29, 2015); Articles 80 (see current Articles 80 and 80-2) of the former Medical Service Act (Amended by Act No. 13658, Dec. 29, 2015); Articles 2(1) and 3, 4, and 5 [Attachment] of the former Rules on Assistants and Medical Care Services (Amended by Ordinance No. 472, Dec. 30, 2016); Article 2 of the Rules on Assistants and Medical Care Services Providers; Article 325 of the Criminal Procedure Act

Defendant

Prosecutor

Freeboard and one other

Attorney Yang Ho-ok

Jeju District Court Decision 2017Gohap116 decided May 28, 2018

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

Although removing a contagious consecutive type of medical practice constitutes a medical practice, it cannot be deemed that the instant medical practice is justifiable for the sole reason that the Defendant, a medical doctor, had Nonindicted Party 1, a assistant nurse, who is not a medical practitioner, conduct a procedure to remove the contagious succession on the left side of the patient Nonindicted Party 2 (hereinafter “the instant patient”), constitutes an unlicensed medical practice subject to the regulation of the Medical Service Act. Furthermore, the instant medical practice cannot be deemed as unlawful solely on the grounds that the practical difficulties in the supply of and demand for nurses, Nonindicted Party 1, a assistant nurse, had much experience in the same kind of medical practice.

Although the instant procedure constitutes an unlicensed medical practice subject to punishment, the lower court erred by misapprehending the legal doctrine on the Defendant who instructed Nonindicted 1 to conduct the instant procedure.

2. Judgment on the prosecutor's assertion

A. Whether the instant procedure constitutes medical practice

The term "medical act" under Article 27 (1) of the Medical Service Act means the act of preventing or treating a disease caused by a diagnosis, autopsy, prescription, medication, or an outpatient operation with the experience and function based on medical expertise, and other acts that may cause harm to public health and sanitation if performed by a medical person. Here, the term "risks that may cause harm to public health and sanitation if performed by a medical person" as referred to in this context is sufficient to be abstract risk, and thus, it cannot be said that there is no harm to public health and sanitation on the ground that there is no risk to a patient (see Supreme Court Decision 2010Do5964, May 10, 2012).

Examining the contents and methods of the instant procedure in light of the aforementioned legal principles, it is determined that the instant procedure constitutes a medical act under Article 27(1) of the Medical Service Act, which is likely to cause harm to public health and sanitation if the treatment of a disease based on medical expertise is performed by a medical person.

B. Whether an assistant nurse, who is not a non-medical person, can perform the instant procedure

1) Whether only a doctor is eligible for medical treatment

A) A medical doctor may direct or delegate a nurse, who is a medical practitioner, to provide assistance in medical treatment. Meanwhile, although an assistant nurse does not fall under the Medical Service Act, Article 80(2) and (3) of the former Medical Service Act (amended by Act No. 13658, Dec. 29, 2015; hereinafter “Medical Service Act”) provides that an assistant nurse shall be able to provide assistance in nursing services, notwithstanding Article 27 of the Medical Service Act, and matters necessary for the limit of his/her services are prescribed by Ordinance of the Ministry of Health and Welfare. Accordingly, Article 2(1) of the former Rules on Assistant Assistants and Medical Care Providers (amended by Ordinance of the Ministry of Health and Welfare No. 472, Dec. 30, 201; hereinafter “Rules of this case”); Article 2(2) of the amended Rules of the Medical Service Act provides for the scope of assistance in nursing services and the limitation of the assistant nurse’s assistance in providing medical treatment services to a medical institution separately.

B) Therefore, a medical doctor should be deemed to have ordered or delegated a non-medical assistant to assist in medical treatment within a limited scope. However, as in the case of a nurse, it is not permissible to direct or delegate only a physician to provide medical treatment. Thus, even if a nurse or assistant nurse received a doctor’s instruction or delegation, such act constitutes non-licensed medical practice (see Supreme Court Decision 2010Do2755, May 13, 2010).

C) Comprehensively taking account of the following circumstances revealed by the records of the instant case, it is highly probable to view that the instant procedure is included in the scope of work that can be performed as a supporting act under the proper instruction and supervision of a physician, not a medical doctor who can perform only by nature.

① It is known that an infectious disease is infected by direct contact with a patient or indirect vehicle. This is also naturally extinguished without any special treatment, but there are many cases where treatment is required due to the spread of the disease and the risk of secondary infection. In the treatment of the infectious disease, there are medical diagnosis as to whether the disease in question constitutes an infectious series (where it is determined that all or part of the disease in question is not an infectious series, it appears that the defendant directly treats the disease or conducted a procedure in cooperation with the nurse, etc.) and decisions on the timing of treatment are important.

② 이에 반해 의료도구인 큐렛을 이용한 이 사건 시술과 같이 이 사건 전염성 연속종을 제거하는 구체적인 시술 자체는, 의학적 관점에서의 재량적 판단이나 전문적 기술을 요하지 않는 비교적 단순한 행위로 평가할 수 있다. 즉, ㉠ 전염성 연속종을 제거하는 시술은 일반적으로 두 손가락으로 해당 부위를 벌려 팽창되었을 때 큐렛을 이용하여 제거하는 방법으로 이루어지며, 한 개의 전염성 연속종을 제거하는 데 5초 이내의 매우 짧은 시간만이 소요된다. ㉡ 전염성 연속종의 병변은 이차적인 박테리아 감염이 없는 이상 흉터 없이 저절로 치유되고, 의료인의 관여 없이 테이프 등을 이용하여 자체적으로 제거하는 경우도 드물지 않게 관찰된다. ㉢ 큐렛을 사용한 전염성 연속종 제거 시술은 비교적 안전하여 피부표면의 양성병변 치료에 널리 사용되고 있으며, 다른 방법에 비해 비교적 효과적이고 안전한 시술로 보고되고 있다.

③ The term “medical civil petition quality and reply case collection” produced by the Ministry of Health and Welfare refers to the act of taking care, such as under the direction and supervision of a doctor as an act of assisting in medical treatment (see Supreme Court Decision 2001Do3667, Aug. 19, 2003). It is difficult to readily conclude that the instant procedure is more likely to cause harm to public health and sanitation than the above injection act in terms of the degree of invasion on the body of a patient or the risk of infection.

2) Whether the instant procedure was performed under the proper guidance and supervision of a doctor as a medical assistance act

A) While a nurse or assistant nurse assists in medical treatment, he/she shall be present at the site at all times and shall not be subject to guidance and supervision. As such, there may be cases where a physician is allowed to conduct general guidance and supervision without having to attend the site of assisting in medical treatment. However, in a case where it cannot be uniformly determined according to the type of assisting act, it shall be determined on an individual basis by taking into account the following circumstances: (a) whether a patient at the time complies with the objective characteristics of the act; (b) whether a patient is likely to suffer side effects or symptoms; and (c) the quality and training of the nurse are to a certain extent (see Supreme Court Decision 2010Do2755, supra).

B) The instant medical procedure was conducted by Nonindicted Party 1, a assistant nurse, without the presence of the Defendant, without the presence of the Defendant. However, considering the following circumstances revealed by the records of the instant medical procedure in light of the aforementioned legal principles, it is also allowed for a physician to conduct general guidance and supervision without the presence of a doctor in the instant medical procedure conducted by a assistant nurse as an act of medical assistance. In the instant medical procedure, it is determined that such general guidance and supervision have been conducted by the Defendant (in comparison with a nurse who is a medical person, it is necessary to conduct more strict guidance and supervision of the assistant nurse as to the instant medical procedure, however, considering the following circumstances, the instant medical procedure does not affect the conclusion in light of the following circumstances.

(1) Risk of the instant procedure

① As seen earlier, the instant procedure is not only a simple act that does not require any specialized medical judgment or technology, but also appears to have a very low possibility of causing symptoms or side effects. The instant patient did not appeal to a side effect or post-treatment after the instant procedure, and the circumstance that there was a side effect after the instant procedure was conducted by the Defendant, etc., even in the case of another patient who was within the hospital operated by the Defendant, etc., may not be confirmed.

② Although it cannot be said that there is no risk of infection in the process of removing infectious species, the risk of infection is likely to be an issue even in the process of administering the relevant father after the procedure is not performed (see, e.g., Supreme Court Decision 2009Da11448, Apr. 2, 2009). Ultimately, for the smooth treatment of infectious species, it seems that the control of infection by patients other than medical personnel and patients by themselves ought to be practically accompanied.

(2) The condition of the instant patient and the Defendant’s medical treatment at the time of procedure

이 사건 환자는 만 3세의 아동으로 2016. 6. 14. 알레르기성 접촉성 피부염 증상으로 피고인에게 처음 진료를 받았고, 2016. 9. 1. 같은 증상으로 다시 병원을 방문하였다. 피고인은 이 사건 환자에 대해 두 차례의 진료를 실시한 결과 해당 질환을 전염성 연속종으로 진단하였고, 환자 및 전염성 연속종의 상태 등을 고려할 때 큐렛을 사용한 제거 시술만으로도 해당 질환을 치료할 수 있다고 보아 공소외 1에게 이 사건 시술을 지시하였던바, 그 과정에서 이 사건 환자의 보호자 등에게 전염성 연속종의 제거 시술 후 정기적인 소독 등 감염 관리의 필요성과 그 방법, 향후 부작용 등이 발생할 경우 병원에 내원할 것 등을 적절한 방법으로 안내하였을 것으로 보인다.

(3) Quality and training of assistant nurses;

① Article 80(1) of the Medical Service Act provides that “A person who intends to become an assistant nurse shall pass the qualifying examination for an assistant nurse and obtain the recognition of the competent Mayor/Do Governor.” Article 80(3) of the same Act provides that matters necessary for the qualifying examination and recognition of qualifications for an assistant nurse shall be prescribed by Ordinance of the Ministry of Health and Welfare. Articles 3 through 5 of the same Act provide that “A person who has graduated from a department related to nursing at a specialized high school under Article 91(1) of the Enforcement Decree of the Elementary and Secondary Education Act, who has completed at least 740 hours of education at a medical institution or a public health clinic at the relevant educational institution, shall be entitled to take the qualification examination for an assistant nurse (Article 4), and the Minister of Health and Welfare shall have the above applicant undergo the qualifying examination at least once a year, including “basic nurse nurse”, “public health nurse”, “public health clinic theory”, and “the qualification examination for an assistant nurse” (Article 3 and 5).

② 공소외 1은 간호조무사 자격을 취득한 후 2015. 5. 1.부터 이 사건 시술을 실시할 무렵까지 약 1년 4개월간 피고인 등이 운영하는 병원에서 근무하였다. 공소외 1은 위 병원에 근무한 후 일정 기간 동안 같은 병원에 근무하는 의사 내지 간호사, 혹은 선배 간호조무사들이 실시하는 전염성 연속종 제거 시술을 참관하거나 시술 방법을 지도받는 등으로 교육을 받았고, 소정의 교육기간이 지난 후에는 피고인 등 소속 의사의 지시에 따라 다수의 환자들을 상대로 큐렛을 이용하여 직접 전염성 연속종 제거 시술을 하였다.

3) Ultimately, the instant procedure appears to have been conducted as part of the instant medical practice under the general guidance and supervision of the Defendant, who is a doctor, pursuant to Non-Indicted 1. As seen earlier, the evidence submitted alone cannot be deemed to constitute a violation of the Medical Service Act, or the illegality of the instant procedure is excluded by a justifiable act that does not violate the social rules in light of the aforementioned paragraphs 2-b. 1 and 2.

3. Conclusion

Since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Noh Jeong-un (Presiding Judge)