[1] In a case where, although a physician did not individually instruct or delegate a nurse to conduct medical practice, the nurse-led medical practice was determined, and the physician did not instruct or take part in the process of performing medical practice by the nurse, whether the act constitutes an unlicensed medical practice prohibited under Article 27(1) of the Medical Service Act (affirmative)

[2] The purport of allowing a doctor to prepare medical records under Articles 22(1) and 90 of the Medical Service Act

[1] Article 30 of the Criminal Act; Articles 27(1) and 87(1)2 of the Medical Service Act / [2] Articles 22(1) and 90 of the Medical Service Act

[1] Supreme Court Decision 2010Do5964 Decided May 10, 2012 (Gong2012Sang, 1031) / [2] Supreme Court Decision 97Do2124 Decided January 23, 1998 (Gong198Sang, 642)

Defendant 1 and five others

Defendants

Members General Law Firm and 7 others

Seoul Central District Court Decision 2012No2891 Decided November 29, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal on mistake of facts and misapprehension of legal principles as to unlicensed medical practice

In a case where a physician allows a nurse to engage in medical practice, the relevant medical practice is performed under the responsibility of the doctor, and the nurse is merely an assistant. Although a nurse performs “medical practice”, a doctor does not always participate in the field and instruct and supervise the nurse at all times, and as a result, a physician is sufficient to provide general guidance and supervision without having to participate in the field of assisting medical practice. However, this means that a physician is able to instruct or delegate part of the medical practice in consideration of the nature, risk, etc. of the medical practice while the doctor led and provided medical practice. On the contrary, in a case where a doctor does not separately instruct or delegate the nurse with the implementation of medical practice, and the doctor did not instruct or supervise the doctor in the process of performing the medical practice, this constitutes an unauthorized medical practice prohibited under Article 27(1) of the Medical Service Act. Moreover, if a doctor in collusion with the nurse in performing medical practice in such a way and jointly controlled the doctor’s functional act, the doctor shall also be deemed as a joint principal offender (see, e.g., Supreme Court Decision 2010Do510.

The court below held that it is reasonable to view that a doctor at a WIGn medical examination and diagnosis of a patient before anesthesia, individually determined whether to administer a anesthesia for each patient and the volume thereof, and that a doctor directly administer a anesthesia in order to grasp the patient's genuine depth and to control the volume of medicine at the time of administering the anesthesia; even if a doctor directly administer a anesthesia through a beer which is secured in advance for nurses, etc., the doctor bears the duty to participate at the site and to give specific instructions and supervision; and if a doctor delegates a propool injection to nurses, etc. in violation of this duty, it constitutes an unlicensed medical act. According to evidence duly adopted, the court below determined that the Defendants provided a propool administration at all of the procedures conducted by the hospital operated by him without any special restriction, and that the Defendants can be recognized as having the nurse and nurse without any specific instruction and supervision of the nurse and nurse for the patient as stated in the judgment of the court of first instance without any restriction.

Examining the reasoning of the judgment below in light of the aforementioned legal principles, we affirm the judgment below. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the law of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles as to unlicensed medical practice.

2. As to the ground of appeal on Defendant 2 and Defendant 4’s mistake of law

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court’s rejection of the Defendants’ assertion of legal error on the grounds stated in its reasoning is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors

3. As to the ground of appeal by misapprehending the legal principles as to the non-entry of the entries in medical records by Defendants 1, 2, 3, and 4

In a case where a doctor provides a patient with medical treatment, he/she shall prepare a medical record and signed in detail the matters and opinions regarding the relevant medical treatment under Article 22(1) of the Medical Service Act, and a person who has not prepared a medical record shall be punished pursuant to Article 90 of the same Act. As such, the purport of allowing a doctor in charge of medical treatment to prepare a medical record is to make accurate records of the patient's condition and the progress of medical treatment without omitting any information on the patient's progress and to allow other persons in charge of medical treatment to use it for continued patient treatment, as well as allowing other persons in charge of medical treatment to provide such information with appropriate medical treatment, and allow them to use such information as data to determine the propriety of the relevant medical practice after the completion of the relevant medical practice. Thus, even though the Medical Service Act does not have any specific provision on the method of preparation of medical records, a doctor may have discretion to prepare a medical record by the method that he/she determines that it is effective. However, any method should be continuously used for the patient's treatment, provide other medical personnel with information, and enter in detail to determine the propriety of medical practice (see Supreme Court Decision 197Do23.

Based on its stated reasoning, the lower court determined that the omission by the above Defendants of the details of propool and signature as stated in the list of crimes in the judgment of the first instance constitutes an unwritten act of medical records prohibited under the Medical Service Act.

Examining the reasoning of the judgment below in light of the above legal principles, we affirm the above judgment of the court below, and there is no error of law by misapprehending the legal principles concerning non-entry in medical records, as otherwise alleged in the ground of appeal.

4. As to the ground of appeal by Defendant 6 on the mistake of facts or omission of judgment on the frequency of crime

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the court below is just in finding Defendant 6 guilty of all the facts charged in the list of crimes in the judgment of the court of first instance on the grounds as stated in its reasoning. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of

5. Conclusion

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

Justices Lee In-bok (Presiding Justice)