The purport of Article 22(1) of the Medical Service Act that allows a doctor to prepare medical records / Whether the choice of the method of preparing medical records is in the discretion of a doctor (affirmative), and the degree of detailedness necessary when recording the method of preparing medical records / Whether the doctor’s signature may be omitted (negative)

Articles 22(1) and 90 of the Medical Service Act

Supreme Court Decision 97Do2124 Decided January 23, 1998 (Gong1998Sang, 642), Supreme Court Decision 2012Do119 Decided September 4, 2014, Supreme Court Decision 2014Do1657 Decided June 23, 2016 (Gong2016Ha, 1090)

Defendant

Defendant

Law Firm Taek (LLC, Attorneys Jeong Jong-ho et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2015No1027, 1118 Decided July 16, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the violation of the Medical Service Act

When a physician provides medical treatment to a patient, he/she shall prepare a medical examination and treatment record and signed in detail the matters and opinions concerning the relevant medical treatment under Article 22(1) of the Medical Service Act. As such, the purport of allowing a doctor in charge of medical treatment to prepare a medical examination and treatment record is to ensure that a doctor in charge of medical treatment records accurate information about the patient’s condition and the progress of medical treatment without omitting it and allow other persons engaged in medical treatment to use it for patient treatment and provide other persons with information so that the patient can receive appropriate medical treatment, and allow them to use it as data to determine the propriety of the relevant medical treatment after the completion of the medical treatment. Meanwhile, since the Medical Service Act does not have any specific provision regarding the method of preparing the medical examination and treatment record, a doctor has discretion to prepare a medical examination and treatment record by determining that it is effective, and provide other medical persons with information, and to ensure the propriety of the medical treatment record and signature of a doctor (see, e.g., Supreme Court Decisions 9Do2124, Jan. 23, 1998).

Examining the record in light of the above legal principles, the lower court did not err by misapprehending the legal doctrine on the violation of the Medical Service Act, contrary to what is alleged in the grounds of appeal, which found the Defendant guilty of violating the Medical Service Act on the grounds of omitting a doctor

2. As to the violation of the Mental Health Act

The lower court acknowledged the fact that the Defendant did not receive written consent from Nonindicted 1’s wife Nonindicted 2 while hospitalized Nonindicted 1, a mentally ill person, as the head of a mental medical institution, despite the need for the consent of two legal guardians.

In addition, Article 14(2) of the Enforcement Rule of the Mental Health Act provides that where the consent of two legal guardians is required and one of the legal guardians has expressed his/her consent, but there is an inevitable reason not to submit a written consent of hospitalization signed or sealed by the time of hospitalization due to old age, illness, military service, convict, overseas residence, etc., the director of the mental medical institution may receive the written reason from other legal guardians to be hospitalized. As alleged by the defendant, Nonindicted Party 1 was transferred to an emergency vehicle at night, and it is difficult for Nonindicted Party 2 to prepare a written consent of hospitalization by the late time of night when he/she resides in another place, such circumstance alone alone is insufficient to deem that Nonindicted Party 2 failed to submit a written consent of hospitalization by the time of hospitalization of Nonindicted Party 1 constitutes an inevitable reason as stipulated in the above Enforcement Rule.

Examining in light of the relevant legal principles and evidence, the lower court did not err by misapprehending the legal doctrine on the violation of the Mental Health Act, contrary to what is alleged in the grounds of appeal by misapprehending the legal doctrine on the existence of an inevitable reason in violation of logical and empirical rules

3. As to the victim non-indicted 1's occupational injury or death

The lower court determined that the Defendant, as a hospital manager, was negligent in the conduct of business, in failing to properly maintain, repair, and manage the building, and that the victim Nonindicted Party 1 died of the building, because the Defendant, as the hospital manager, was likely to commit suicide or escape at any time, due to the possibility of committing suicide or attempted escape, while the Defendant was responsible for installing a separate protective wire network on the window of windows or maintaining, repairing, and managing the building so as not to keep the glass away from the window, and due to such negligence, the victim Nonindicted Party 1 died from the window of the glass window because of the said negligence.

Examining in light of the relevant legal principles and evidence, the lower court did not err in its judgment by misapprehending the facts concerning the existence of occupational negligence in violation of logical and empirical rules or by misapprehending the legal doctrine, contrary to what is alleged in the grounds of appeal

4. As to the victim non-indicted 3's occupational injury or death

The lower court convicted the Defendant of this part of the charges on the ground that the medical personnel, who was in charge of the victim Nonindicted 3’s medical treatment, did not fulfill their duty of care to prevent the salutism in the process of coercion, and did not take any proper measures despite the victim Nonindicted 3 showing symptoms such as the pulmonal difficulty before the victim’s death, due to these negligence, the victim Nonindicted 3 died with the pulmonary dyecule electric shock, and both the Defendant, Nonindicted 4, and the nursing personnel were in charge of the treatment for the victim Nonindicted 3 as a medical personnel in charge of the treatment for the victim Nonindicted 3, and the Defendant cannot escape from their responsibility.

Examining in light of the relevant legal principles and evidence, the lower court did not err in its judgment by misapprehending the facts regarding the existence of causal relationship with occupational negligence in violation of logical and empirical rules, or by misapprehending the legal doctrine on joint principal offender, etc., contrary to what is alleged in the grounds of appeal.

5. Conclusion

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

Justices Lee Ki-taik (Presiding Justice)