[1] The meaning of "medical treatment at the request of a patient or his/her guardian" under Article 33 (1) 2 of the Medical Service Act

[2] The case affirming the judgment below holding that the above act violated Article 33 (1) of the Medical Service Act, in case where Gap medical corporation operating a hospital, which is a medical care institution, had a doctor under its jurisdiction visit the social welfare facility 1 and 2 times a week to treat patients and received medical examination fees as medical care benefit costs, etc.

[3] In a case where Gap medical corporation operating a hospital, which is a medical care institution, claimed medical care benefit costs, etc. in the name of medicine expenses, etc. as if the doctor prepared and administered oral medicine to the patient of the hospital by himself/herself, the case holding that it is not unfair for the National Health Insurance Corporation, etc. to make the full amount of the above medical care benefit costs, etc.

[1] In principle, the Medical Service Act provides a medical service within a medical institution established by a medical person with a duty of care to prevent any danger to a patient’s life, body, or health due to deterioration of medical care and infringement of the patient’s right to receive proper medical care, etc., which would disrupt the order of medical care due to the need for the healthcare policy to prevent any serious hazard to public health and hygiene. The term “medical treatment” refers to a kind of medical practice that cannot be performed by a medical person, other than a medical person, as a type of medical practice, such as treatment, diagnosis, prescription, medication, or surgery, which is performed by a medical person with the experience and function based on medical expertise, and a medical person bears the duty of care to take the best measures required to prevent any danger to a patient’s life, body, or health due to the patient’s specific symptoms or circumstances. Thus, it is reasonable to interpret that a medical person who received a request from a patient or his/her guardian should prepare for the patient’s treatment in advance and provide necessary instruments, equipment, etc. to the patient, barring special circumstances, to the patient or his/her guardian.

[2] In a case where Gap medical corporation operating a hospital, which is a medical care institution, allowed its medical doctors to visit the social welfare facility 1 and 2 times a week to treat patients, and claimed medical care fees as medical care benefit costs, the case affirming the judgment below holding that Gap's above visit medical care does not constitute a case where medical care can be performed outside the medical institution established by a medical person under each subparagraph of Article 33 (1) of the Medical Service Act, and thus, it constitutes a violation of Article 33 (1) of the Medical Service Act to claim medical care benefit costs after medical care at the above social welfare facility

[3] In a case where Gap medical corporation operating a hospital which is a medical care institution filed a claim for drug expenses, drug management fees, and medical care benefit expenses under the name of medical care guidance fees, etc. as if the doctor prepared and administered the oral medicine to the patient of the hospital by alone, the case holding that it is not unfair that Eul's act of preparing the above drugs constitutes an unlawful violation of the Pharmaceutical Affairs Act, and thus, even if there is actual expenses, it cannot be claimed as medical care benefit costs or medical care expenses, and the National Health Insurance Corporation, etc. shall not make all the amount paid as medical care benefit costs, etc. by Eul as a result of the preparation of Eul's act

[1] Article 33 (1) 2 of the Medical Service Act / [2] Article 33 (1) of the Medical Service Act, Article 52 (1), Article 85 (1) 1, and Article 85-2 (1) of the National Health Insurance Act / [3] Article 52 (1) of the National Health Insurance Act, Article 23 (1) of the Medical Care Assistance Act

Medical Corporation Hero Medical Foundation (Law Firm Sejong, Attorneys Kim Sun-soo et al., Counsel for the defendant-appellant)

The Minister of Health and Welfare and two others (Attorney Seo-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu7538 decided November 4, 2010

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

Article 33(1) of the Medical Service Act provides that “A medical person shall not provide medical services without establishing a medical institution under this Act, and shall provide medical services within the medical institution except in any of the following cases.” Article 33(1)2 provides that “Where a medical person provides medical services at the request of a patient or his/her guardian.” As a matter of principle, the Medical Service Act provides that a person provides medical services within a medical institution established by a medical person outside the medical institution provides medical services would disturb the medical order due to deterioration in the quality of medical care and infringement of the patient’s right to receive appropriate medical treatment, etc. In order to prevent any serious danger to the public health and sanitation, the medical treatment is a kind of medical practice that cannot be provided by a medical person unless it is a medical person, and that a medical person provides medical services at the request of a patient with an experience and function based on his/her medical expertise, provides medical treatment for the prevention or treatment of a disease, etc. within the medical institution.” As such, the medical person provides medical services as above, taking account of the patient’s specific symptoms or best condition of the patient’s care or the patient’s request to provide treatment.

In light of the above legal principles and records, the court below held that the Plaintiff’s visit medical treatment of this case partially cited the judgment of the court of first instance did not constitute a case where the Plaintiff could conduct medical treatment outside the medical institution established by a medical person under each subparagraph of Article 33(1) of the Medical Service Act, and held that the Plaintiff’s claim for medical care benefit costs and medical care costs after the medical treatment outside the medical institution of this case constitutes a violation of Article 33(1) of the Medical Service Act and constitutes a ground under Article 85(1)1 of the National Health Insurance Act and Article 28(1)1 of the Medical Care Assistance Act. There is no error of law by misunderstanding the legal principles as to the interpretation of Article 33(1)2 and 5 of the Medical Service Act, as otherwise

2. As to the third ground for appeal

This part of the grounds of appeal is that even if the non-party's act of the nurse belonging to the plaintiff of this case violates the Pharmaceutical Affairs Act, the unfair amount subject to recovery should be limited to the preparation fees, and the pharmaceutical expenses, pharmaceutical management fees, and medical care guidance fees should be excluded. However, this part of the grounds of appeal is asserted only in the final appeal, and it cannot be a legitimate ground of appeal.

In addition, Article 52 (1) of the National Health Insurance Act (hereinafter “National Health Insurance Act”) and Article 23 (1) of the Medical Care Assistance Act do not require a medical care institution or medical care institution to submit false data or actively conceal the fact in order to receive medical care benefit costs or medical care costs, and include all acts of claiming and receiving medical care benefit costs or medical care costs, even though they are not entitled to receive medical care benefit costs or medical care costs under the relevant statutes.

According to the reasoning of the judgment of the court of first instance cited by the court below, although the non-party to the nurse of this case independently prepared and administered the oral medicine to the non-party to the nurse of this case from February 1, 2007 to October 31, 2007, the plaintiff was paid the drug expenses, drug management fees, and medical care expenses and medical care expenses under the name of the drug guidance fees as if the plaintiff prepared the oral medicine to the patient of this case. In light of the above legal principles, in light of the above legal principles, the non-party to the nurse of this case, who belongs to the member of this case, constitutes violation of the Pharmaceutical Affairs Act, and thus, it cannot be claimed as medical care expenses or medical care expenses, so long as the defendant National Health Insurance Corporation and the defendant Asan market did not claim as the medical care expenses or medical care expenses, it cannot be viewed that the plaintiff's whole amount received by the non-party as the medical care expenses and medical care expenses for the non-party to the nurse

3. As to the fourth ground for appeal

According to the reasoning of the judgment of the court of first instance, the court below determined that each of the dispositions of this case in light of the following facts: (a) the amount received by the plaintiff in an unfair manner is reasonable; and (b) the degree of illegality cannot be deemed to be minor; and (c) there was no violation of law by deviation or abuse of discretionary power, compared to

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error of law by misapprehending the legal principles on deviation and abuse of discretionary power, as alleged in the grounds of appeal.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)