[1] In a case where a midwife performed a medical act such as a medical examination and treatment, which only a doctor can perform, or where a nurse performed the above medical act under a doctor's instruction or delegation, whether it constitutes an act of unlicensed medical treatment (affirmative)

[2] The case holding that an act of a midwife's diagnosis, recovery, disinfection, medical prescription, etc. against a patient who had found his/her working father's child constitutes an unlicensed medical act even if a doctor's instruction was given as a medical treatment itself, not an act of assistance in medical treatment

[1] According to Article 2 of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007), a midwife is also a medical person under the Medical Service Act; however, a midwife is engaged in assistance in child delivery and health and nursing guidance for pregnant women and newborn babies during his/her medical practice. Thus, in cases where a midwife performs a medical act such as diagnosis and treatment for female women who can be performed only by a doctor beyond this provision, it constitutes an unlicensed medical act prohibited under Article 25 of the former Medical Service Act. Further, although a doctor may instruct or delegate a nurse to assist in medical treatment, it is not permissible to direct or delegate a medical act that only a doctor can instruct or delegate such act. Thus, even if a nurse was instructed or delegated by a doctor and delegated such act, it constitutes an unlicensed medical act.

[2] The case holding that an act of a midwife's diagnosis, recovery, disinfection, and issuance of medical prescription against a patient who had found his/her her her her her her her her her her her her her her her her her her her her own

[1] Articles 2 and 25 (see current Article 27) of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007) / [2] Articles 25 (see current Article 27) and 66 subparagraph 3 (see current Article 87 (1) 2) of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007)

[1] Supreme Court Decision 84Do2316 delivered on September 13, 198 (Gong1988, 1289) Supreme Court Decision 92Do848 delivered on October 9, 1992 (Gong1992, 3181)

Defendant

Defendant and Prosecutor

Attorney Jeon-hee et al.

Suwon District Court Decision 2005No4134 decided Mar. 30, 2006

Each appeal shall be dismissed.

We examine the grounds of appeal.

1. Judgment on the defendant's appeal

According to Article 2 of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007; hereinafter the same), a midwife is also a medical person under the Medical Service Act. However, a midwife's mission is to engage in assistance in child delivery, childbirth, bathing, and guidance for health and nursing of newborns. Thus, in cases where a midwife performs medical acts such as diagnosis and treatment for female women who can do so more than that of a midwife, it constitutes an unlicensed medical act prohibited under Article 25 of the former Medical Service Act (see Supreme Court Decisions 84Do2316, Sept. 13, 198; 92Do848, Oct. 9, 192). In addition, even if a doctor instructs or delegates a nurse to assist in medical treatment, he/she can only give a doctor an instruction or delegate a doctor's license for medical treatment, it constitutes an act of medical care without authorization or delegation.

The court below determined that, in full view of the employment evidence, the non-indicted 1, who was a midwife, performed non-licensed medical practice by independently performing medical treatment against the patients suffering from the childbirth operated by the defendant, such as medical examination, recovery, disinfection, and treatment by issuing a prescription, etc. Furthermore, the court below held that the non-indicted 1, a midwife, even if the defendant's instructions were made as argued by the defendant, cannot be viewed differently because the act performed by the non-indicted 1, a midwife constitutes not a medical assistance but a medical treatment itself. In light of the above legal principles and records, the court

The court below did not err in the misapprehension of legal principles as to the scope of services or the concept of assistance in medical treatment of nurses and midwifes, as alleged in the grounds of appeal.

2. Judgment on the prosecutor's appeal

In light of the records, the court below's decision is just in holding that the defendant's act of unauthorized medical care or the act of unauthorized medical care in collusion with the non-indicted is difficult to be recognized, in light of the fact that this case occurred at the time when the defendant was in a foreign country, and that the employee's intention with the non-indicted who had been operated by the defendant during the absence period of the defendant's intention to prevent the absence of the intention to voluntarily retire from office.

The gist of the argument in the grounds of appeal is without merit, which is a fact-finding court, and it is not erroneous for the selection of evidence and fact-finding.

Meanwhile, according to the records, it appears that the Nonindicted Party stated in the preliminary facts charged that the Nonindicted Party had engaged in an unlicensed medical practice from April 2004, and even if not, there is no evidence to acknowledge it. Therefore, the omission of the judgment by the lower court cannot be deemed to have affected the conclusion of the judgment. Therefore, this cannot be a ground for reversal of the lower judgment.

3. Conclusion

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

Justices Shin Hyun-chul (Presiding Justice)