Where a medical care institution arbitrarily provides non-benefit medical treatment and receives expenses from a policyholder, etc., the standard for determining whether the medical care institution has given consent by sufficiently explaining the items to be explained in order to obtain consent from the policyholder, etc.

Article 39(3) of the former National Health Insurance Act (amended by Act No. 8034 of Oct. 4, 2006) (see current Article 41(3))

○○ Private Teaching Institute (Attorney Park Young-chul et al., Counsel for the defendant-appellant)

The Health Insurance Review and Assessment Service (Law Firm Hun-Myeon, Attorneys Southern-gu et al., Counsel for defendant-appellant)

Seoul High Court Decision 2011Nu32210 decided December 18, 2013

The part of the judgment of the court below regarding “non-calculated portion” and “out-reported portion” are reversed, and that part of the case is remanded to the Seoul High Court. The remaining grounds of appeal by the plaintiff are dismissed.

1. We examine the grounds of appeal as to “the portion not for separate calculation” and “the portion not for which permission is granted.”

A. In light of the purport of the national health insurance system, when examining the whole system of the National Health Insurance Decree, such as the subject of, criteria for, and procedures for, medical care benefits and the legal principle on, non-benefit eligibility, etc., based on the purport of the national health insurance system, health care institutions shall, in principle, provide health care benefits to subscribers, etc. in accordance with the criteria and procedures prescribed in the Act and subordinate statutes on the criteria for recognition of health care benefits, unless the so-called non-benefit treatment is not so-called statutory non-benefit treatment that is excluded from the subject of health care benefits under Article 39(3) of the former National Health Insurance Act (amended by Act No. 8034, Oct. 4, 2006; hereinafter the same shall apply), and even when the insurer, the insured, etc. receive the health care benefits from the insurer, etc., the excessive charges to be confirmed and notified by the Defendant pursuant to Article 43-2(1) and (2) of the former National Health Insurance Act shall be included in the medical care institution’s calculation standard and procedure.

However, even in cases where a medical care institution conducts a non-benefit treatment at will outside the framework of the National Health Insurance Act and receives the expenses from a subscriber, etc., it is difficult to deem that it was avoided in light of the specific circumstances such as the content and urgency of non-benefit treatment and the required period of such treatment along with the contents and the process, the process is difficult to be considered as being avoided in light of the following: (i) if the medical care institution received consent from the subscriber, etc. by sufficiently explaining its contents and expenses in advance, then it is difficult to view that it constitutes a medical care institution’s arbitrary burden; (ii) if it has obtained consent from the subscriber, etc. on the part of the subscriber, etc. by reasonably explaining its contents and expenses; and (iii) if such consent was obtained from the subscriber, etc., it cannot be deemed that the medical care institution received medical care benefits from the policyholder, etc. or made the subscriber, etc. by any other unlawful means” as provided in Articles 52(1) and (4), 85(1)1, and (2) of the former National Health Insurance Act.

Generally, in a case where a doctor performs a medical act, such as an surgery, which is likely to cause an adverse consequence, such as a medical act or death, etc., of a patient, he/she is obligated to explain the relevant patient or his/her legal representative on the symptoms of a disease, treatment method and necessity of treatment, anticipated risk of occurrence, etc. in light of the current medical level and to allow the patient to choose whether to undergo such medical act by sufficiently comparing the patient’s necessity or risk and choosing whether to undergo such medical act (see Supreme Court Decision 2011Da29666, Apr. 26, 2013). Therefore, it is reasonable to view that the medical care institution’s explanation on non-benefit medical treatment is not subject to medical care benefits other than the aforementioned explanation, such as medical safety and effectiveness of the medical treatment act that the doctor must generally, and the need for recognition of medical care benefits and approximate expenses to be borne by the insured, etc., and the legal principle as seen above should be sufficiently explained and given to the patient’s consent to the medical treatment act and treatment at issue.

Meanwhile, the principle of free evaluation of evidence under Article 202 of the Civil Procedure Act, which is applied mutatis mutandis by Article 8 of the Administrative Litigation Act, is not necessary to be bound by the formal and legal rules of evidence, and does not allow a judge’s arbitrary judgment. Thus, the fact finding shall be in accordance with logical and empirical rules based on the principle of justice and equity based on the admissibility of evidence that has gone through legitimate evidence examination procedures, and even if the fact finding falls under the discretion of the fact-finding court, it shall not go beyond the said limit (see, e.g., Supreme Court Decision 2009Da7198, 77204, Apr. 13, 2012).

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts.

(1) The ○○○ University’s △△△ Hospital (hereinafter “Plaintiff hospital”) and its umbrella cell transplantation center are blood-related specialized treatment institutions, such as leuk transfusions, etc., whose total number of times of practice is listed in the highest level in Korea and abroad by 3,129 by 207, including the success of other persons in 194, following the success of the same transplant as the leuk organ of 1983 for the first time in the Republic of Korea.

(2) The organ transplant transplant is currently recognized as the only treatment method for patients suffering from blood diseases, such as leukosis, and it is recognized as the only treatment method for treating patients suffering from a disease, such as the current leukosis. ① Alley and learosis test, ② Earculic transfusion through the inserting of central beer, ③ Earculcium medication, ④ Earcopic surgery, ⑤ Earcopic surgery, and protecopic transplantation and protecopic surgery, and a complex and thorough navigation cancer therapy should be conducted in accordance with the individual status of the patients.

As such, it seems practically impossible to individually explain all non-benefit medicine and materials for medical treatment in advance and obtain prior consent for each medical treatment because the treatment period is long-term, and there is a need for immediate treatment when there is a complication or infection in each phase.

(3) Non-party 1 and Non-party 2 suffering from chronic leuklogic disease, who were suffering from acute leuklogic disease, were hospitalized in the Plaintiff hospital from 2005 to 2006, and was hospitalized in each of the Plaintiff hospital and received treatment related to the operation of the leuk cell transplantation surgery and related treatment (hereinafter “the instant patients”).

At the time of each hospitalization, the instant patients submitted to the Plaintiff hospital a written agreement of hospitalization (Evidence A 6-1 to 10) stating, “Where urgent surgery or inspection is required during the hospitalization, they do not raise any objection to the medical treatment conducted without the consent of their guardians (including non-benefit items that are excluded from those subject to national health insurance medical care benefits and that are necessary for the diagnosis and treatment).”

(4) After that, the guardians of the instant patients presented an explanation to the effect that there may be voluntary non-benefit treatment treatment in the future through an interview with the doctor before the surgery on the organ transplant of the hemoto cell (hereinafter “instant interview”), and that the entire expenses should be borne by the patient. Accordingly, the part of the benefit restriction not recognized in the health insurance medical care benefit standard may occur even if the organ transplant is approved, and this shall not be raised to the total insured (patients), and the consent to the notarial deed on the organ transplant of the same hemoto cell (No. 10-2 and No. 11-4) containing the content that “The guardian of the instant patients shall consent to the notarial deed” was submitted to the Plaintiff hospital.

On January 5, 2006, the day of the interview with Nonparty 2, Nonparty 3, the spouse of Nonparty 2, prepared a written consent to the use of non-benefit drugs (Evidence 11-1 of the A), stating that “The medicines to be used in relation to the treatment and treatment of blood diseases of the patient and the medicines and treatment methods indicated below are non-benefit items. The advantages that can be gained after the use of these medicines and treatment methods have been explained and understood as to the difference between the existing medicines and treatment methods, and I agree to the explanation and use of non-benefit items.” On January 6, 2006, Nonparty 3 prepared a written consent to the use of non-benefit drugs (Evidence 11-1 of the A), and submitted the written application for the use of the same kind of blood cell transplantation as above.

(5) Accordingly, in order to treat the instant patients who received the embryonic stem cell transplantation, the part regarding the cost of medical treatment, equipment, etc. cannot be separately calculated on the basis of the aforementioned hospitalization agreement, the application for transplant of the embryonic stem cell, the written consent on the use of non-benefit medication, etc. (the medical care benefit cost is already included in the medical care benefit cost and thus the cost of medical treatment, equipment, etc. cannot be separately calculated on the basis of the medical care benefit standard) and the “the cost of medical treatment, equipment, etc. other than the permitted items” (the part on which the Plaintiff hospital used the medicine to the relevant veterinary patients in violation of the medical care benefit standard on the efficacy, efficacy, efficacy, and dosage of the medicine, and collected the cost thereof) were individual and non-specific medical treatment act.

C. However, for reasons indicated in its holding, the lower court determined that it is difficult to recognize that the medical personnel of the instant case consented to the medical personnel of the instant case by sufficiently explaining the content and expenses of voluntary non-benefit treatment at the time with respect to the medical personnel of the instant case’s medical personnel, and that (2) as to the Plaintiff’s assertion that it is clearly anticipated that the Plaintiff hospital would have consented to the medical treatment at its own expense even if it explained the content and expenses of voluntary non-benefit treatment because the medical personnel of the instant case would have an intention to bear any expenses, the Plaintiff’s assertion that the medical personnel of the instant case would have clearly consented to the medical treatment at its own expense, is insufficient to recognize it, and (3) it did not accept the claim of this case that the disposition of this case should be revoked because it was unlawful to confirm that the amount of the said medical expenses of the instant medical personnel constituted the excessive personal charges, and refund it

D. First, we examine the part of the voluntary non-payment treatment, which falls under the portion not calculated separately and the part concerning the medication other than the permitted matters, which was conducted before the interview in this case (hereinafter “the part concerning the medical treatment before the interview in this case”).

Examining the reasoning of the lower judgment on the part of the instant medical examination and treatment prior to the interview in light of the aforementioned facts and legal principles, the lower court’s determination that it is difficult to recognize that the instant veterinary personnel consented by the instant veterinary personnel by sufficiently explaining the content and expenses of the instant non-paid medical treatment, even though considering the specificity of the instant medical treatment process, and thus, cannot be deemed as having been sufficiently explained to the relevant veterinary personnel to the extent that the instant veterinary personnel’s entitlement to national health insurance and right to select medical treatment can be guaranteed, solely on the ground that the Plaintiff hospital did not make such explanation impossible.

Therefore, although the reasoning of the court below is somewhat insufficient, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or by misapprehending the legal principles on comprehensive, implied, and presumed consent, etc., which affected the conclusion of the judgment, contrary to what is alleged in the grounds of appeal.

The Supreme Court precedents cited in the grounds of final appeal are different from this case, and thus, it is inappropriate to directly use this case.

E. Next, we examine the part after the instant interview among the voluntary non-benefit treatment treatment that constitutes “non-calculated portion” and “non-permitted part” (hereinafter “the part after the instant interview”).

Examining the factual basis on the part of the medical treatment after the interview in this case in light of the legal principles as seen earlier, even if the principal physician of the Plaintiff hospital did not explain the contents and expenses of the medical treatment each time of voluntary non-benefit treatment, it is reasonable to view that, in light of the unique characteristics of the treatment process, the Plaintiff’s medical treatment is not subject to medical care benefits to the extent that the patient’s right to health insurance and right to receive medical care is guaranteed at the latest time of the interview, and that the pertinent medical treatment is not subject to medical care benefits to the extent that the patient’s health insurance and right to receive medical care is not guaranteed, and (2) the medical necessity and cost burden should be borne by the patient in this case beyond the medical care benefits recognition criteria, etc. (3) it is reasonable to view that the medical doctor of this case had given substantial consent to the medical care benefits received at his own expense as long as the Plaintiff directly prepared and submitted an application for non-payment treatment at his own expense and consent to notarial and non-payment treatment at the time of the interview.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court dismissed the Plaintiff’s claim seeking revocation of the instant disposition regarding the portion of the medical treatment, which was erroneous by misapprehending that the Plaintiff’s sufficient explanation as to the part of the medical treatment after the instant interview and that there was an agreement from the relevant winners.

Therefore, the judgment of the court below on the part of treatment after the interview in this case is erroneous in the misapprehension of legal principles on explanation and consent for voluntary non-payment treatment and in the misapprehension of the principle of free evaluation of evidence against logical and empirical rules, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. The appeal as to "the part concerning the settlement of benefits" is examined.

The Plaintiff also appealed from the judgment of the court below as to the "the part concerning the settlement of benefits" (the part concerning which the Plaintiff hospital collected medical care benefit costs to be claimed to the National Health Insurance Corporation, which is likely to reduce in light of past review cases, even though the Plaintiff was entitled to the claim for medical care benefit costs under the medical care benefit standard). However, neither the petition of appeal nor the grounds of appeal

3. Conclusion

Therefore, the part of the judgment of the court below concerning the "non-calculated portion" and "the part concerning medication other than permitted matters" is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff 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)