2015No457 Violation of the Medical Service Act

A person shall be appointed.

Residence

Reference domicile

Defendant

Type of Residence ( Prosecution) and Mobile (Trial)

Law Firm

Attorney Lee In-bok

Suwon District Court Decision 2014 High Court Decision 2014 High Court Decision 1271 Decided January 22, 2015

August 12, 2015

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal;

A. Error of mistake

The Defendant operated the “○○○○○ Infant Care Hospital” (hereinafter “instant hospital”) and provided medical personnel on duty in accordance with the standards under the Medical Service Act and subordinate statutes. However, the Defendant did not stay at a hospital which is a doctor on duty and waiting in an adjacent accommodation located at a five-minute distance from Do newsletter and carried out on duty. Nevertheless, the lower court erred by misapprehending the legal principles regarding the facts charged solely on the ground that the Defendant did not stay at the instant hospital.

B. Legal principles

Article 18(2) of the Enforcement Decree of the Medical Service Act provides that "mental hospital, rehabilitation hospital, tuberculosis hospital, etc. may place medical personnel on duty according to the standards of the relevant hospital itself to ensure that there is no hindrance to the treatment of inpatients." The above "mental hospital, rehabilitation hospital, tuberculosis hospital, etc." is listed as an example of the medical institution that does not receive an emergency patient. The instant hospital is not an emergency medical institution that receives an emergency patient as a convalescent hospital, but it is included in the above "mental hospital, rehabilitation hospital, tuberculosis hospital, etc.". Therefore, even if the medical personnel on duty did not stay at a hospital within the extent that does not interfere with the treatment of inpatients, it cannot be deemed unlawful. Nevertheless, the judgment of the court below guilty of the facts charged in this case on a different premise is erroneous in the misapprehension of legal principles.

C. Unreasonable sentencing

The sentence of the lower court (an administrative fine of one million won) is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of fact

The following circumstances recognized by evidence duly examined by the court below, i.e., (1) the literal meaning of the "day duty" refers to a medical person who has been on duty at night or on duty at a place where he works, and therefore, "medical person on duty" refers to a medical person who has been living at a hospital and has performed duties appropriately in an emergency situation. (2) The hospital of this case has only one doctor working at the hospital of this case, and the working hours of the doctor are from 09:0 to 18:00, and Saturdays are up to 00: 13:0, and since the defendant has been restricted from moving the physician to another area on duty at night or on holidays, the defendant's assertion that the above physician had been working at the hospital of this case after considering the fact that the above physician had been on duty at one time to visit the hospital of this case is not persuasive. (3)

B. Judgment on the misapprehension of legal principles

In Article 3 (2) 3 of the Medical Service Act, a hospital-level medical institution is defined as a medical institution in which a doctor, dentist, or oriental medical doctor mainly provides medical services to inpatientss, and under item (d), a convalescent hospital (a mental hospital among mental medical institutions under Article 3 (3) of the Mental Health Act;

Article 58(1)2 of the Act on Welfare of Persons with Disabilities lists medical rehabilitation facilities under Article 58(1)2 of the Act on Welfare of Persons with Disabilities, which meet the requirements of Article 3-2, and Article 41 provides that "all kinds of hospitals shall have medical personnel on duty necessary for the treatment, etc. of emergency patients and inpatients." Article 18(1) of the Enforcement Decree of the Medical Service Act provides that the number of medical personnel on duty to be assigned to all kinds of hospitals pursuant to Article 41 of the Medical Service Act shall be the number of medical personnel on duty, who shall be assigned to all kinds of hospitals pursuant to Article 41 of the Medical Service Act.

In other words, the Medical Service Act includes a mental hospital under the Mental Health Act, or a medical institution exceeding a certain size among the medical rehabilitation facilities under the Act on Welfare of Persons with Disabilities. Article 18(2) of the Enforcement Decree of the Medical Service Act provides for exceptions to the standards for the placement of medical personnel on duty, as well as a mental hospital, rehabilitation hospital, tuberculosis hospital, etc.; Article 3(2)3 (d) of the Enforcement Decree of the Medical Service Act provides for the provision for the assignment of medical personnel on duty; Article 18(2) of the Enforcement Decree of the Medical Service Act provides for such exceptions; Article 18(2) provides for the assignment of medical personnel on duty; Article 18(1) of the Enforcement Decree of the Medical Service Act provides for all kinds of hospitals including hospital hospitals, rehabilitation hospital, tuberculosis hospital, etc.; Article 3(2)3 (d) of the Medical Service Act provides for the assignment of medical personnel on duty to patients; Article 18(2) of the Enforcement Decree of the Medical Service Act provides for the treatment of patients.

C. Determination on the assertion of unreasonable sentencing

At present, the fact that a doctor on duty is staying in the instant hospital is favorable to the defendant, and the crime of this case can not be deemed somewhat unreasonable in that it may cause harm to his life and body if a patient is not promptly treated by a medical person on duty. In addition, in full view of all the sentencing conditions, including the details and period of the crime, and the circumstances after the crime, etc., the lower court’s punishment cannot be deemed to be too unreasonable.

3. Conclusion

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

Judges Doing-ho

Judges Kim Jong-chul

Judge Park Jae-il