[1] The requirements and standard for determining medical personnel's negligence in medical malpractice

[2] Whether a nurse constitutes an unlicensed medical practice in a case where a nurse performed a “medical practice only permissible for a doctor” under a doctor’s instruction or delegation (affirmative)

[3] The case holding that in a case where a nurse specializing in anesthesia independently determined the vulnerable medication and quantity of use without a doctor's specific instruction, and the victim performed anesthesia procedures, it constitutes an unlicensed medical practice under the former Medical Service Act

[1] Article 268 of the Criminal Act / [2] Articles 2(2), 25(1) (see current Article 27(1)), and 66 subparag. 3 (see current Article 87(1)2) of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007) / [3] Articles 2(2), 25(1) (see current Article 27(1)), and 66 subparag. 3 (see current Article 87(1)2) of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007)

[1] Supreme Court Decision 2004Do486 Decided October 26, 2006 (Gong2006Ha, 2028), Supreme Court Decision 2008Do3090 Decided August 11, 2008, Supreme Court Decision 2005Do8980 Decided December 24, 2009 / [2] Supreme Court Decision 2006Do2306 Decided September 6, 2007 (Gong2007Ha, 1594)

Defendant

Defendant

Law Firm Jinle, Attorney Yellow-gu et al.

Incheon District Court Decision 2006No1326 Decided January 10, 2008

The appeal is dismissed.

We examine the grounds of appeal.

1. Determination on occupational death

In order to recognize medical malpractice in a medical accident, it is recognized that medical personnel could have predicted the occurrence of outcome and could not have avoided it. In determining the existence of such negligence, the degree of general attention of ordinary persons engaged in the same duties and duties shall be based on the standard, and the standard of medical level, medical environment and conditions at the time of the accident, special characteristics of medical practice, etc. shall be considered (see, e.g., Supreme Court Decisions 86Meu1469, Jan. 20, 198; 2008Do3090, Aug. 11, 2008).

The court below held that the defendant, as a nurse specializing in anesthesia, was negligent in business in failing to take all necessary measures as a nurse specializing in anesthesia, and caused the death of the victim as a result of the combination of occupational negligence and housework's negligence and housework's negligence, which led to the death of the victim, after performing a crypine removal operation for the victim. The court below held that the judgment of the court below and judgment are acceptable in light of the aforementioned legal principles and records, since the court below did not err in misapprehending the legal principles as to occupational negligence or causation, violation of the rules of evidence, etc., and did not accept this part of the ground of appeal on the ground that there is no error in the misapprehension of legal principles as to occupational negligence or causation, violation of the rules of evidence, etc.

2. Determination on the violation of the Medical Service Act

A. In light of the fact that Article 2(2)1 of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007; hereinafter the same) provides that "the duties of a doctor are to engage in medical care and health guidance," and Article 2(2)5 of the same Act provides that "the duties of a nurse shall be to provide assistance in medical care or medical care and to engage in health activities prescribed by Presidential Decree", a doctor may instruct or delegate a nurse to provide assistance in medical care. However, it is not permissible to direct or delegate a physician to provide medical care that only a doctor can provide with high level of knowledge and skills. Thus, even if a nurse received a doctor's instruction or delegation, this constitutes non-licensed medical practice prohibited under Article 25(1) of the former Medical Service Act (see, e.g., Supreme Court Decision 2006Do2306, Sept. 6, 2007).

In addition, in full view of Article 56(1) and (2) of the former Medical Service Act, Article 54(1) and (2) of the former Enforcement Rule of the Medical Service Act (amended by Article 6 of the Addenda of the Regulations on the Recognition, etc. of Qualifications for Professional Nurses (amended by the Ordinance No. 364 of July 7, 2006), etc., in order to become a professional nurse, he/she shall be recognized by the Minister of Health and Welfare after passing a qualification examination with a certain qualification as a nurse. However, even if such a specialized nurse was recognized as a person having expertise in the field of anesthesia, even if he/she was given a doctor’s order, he/she cannot directly perform medical acts that he/she can perform,

The court below held that the act of directly injecting narcotics constitutes a non-licensed medical practice prohibited under Article 25 (1) of the former Medical Service Act in light of the above legal principles and there is no error in the misapprehension of legal principles as to the Medical Service Act, as otherwise alleged in the ground of appeal. The court below did not err in the misapprehension of legal principles as to the medical law. The ground of appeal on this part is without merit.

B. Article 16 of the Criminal Act provides that "the act of a misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding." Whether there exists a justifiable ground or not shall be determined depending on whether the act was not aware of illegality as a result of his failure to perform his/her own act even though he/she could have sufficiently known the illegality of his/her act if he/she had failed to perform his/her own intellectual ability and could have sufficiently examined or inquired about the possibility of illegality of his/her act. The degree of efforts necessary for recognizing illegality should be determined differently according to the circumstances of the act, individual awareness ability of the actor, as well as social group to which the actor belongs (see, e.g., Supreme Court Decisions 2005Do3717, Mar. 24, 2006; 2007Do1915, Dec. 24, 2009).

The court below held that there is no justifiable reason for the defendant to believe that the defendant's act of anesthesia under the doctor's order does not constitute a non-licensed medical practice, even if based on the content of materials such as authoritative interpretation based on the assertion that there is a justifiable reason to believe that the defendant's act of anesthesia does not constitute a non-licensed medical practice, anesthesia nurse can assist the defendant in anesthesia treatment only with specific instructions required by the doctor. Thus, the defendant's decision is justifiable in light of the above legal principles, and there is no error in the misapprehension of legal principles as to errors in law, as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)