• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.75-103
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• 2017

There are three types of benefits in the National Health Insurance Act of Korea. Those are the treatment benefit, statutory uninsured medical benefits and arbitrary uninsured medical benefits. Recently the Korea Supreme Court changed its past legal theory and permitted the arbitrary uninsured medical benefits under the strictly exceptional conditions. According to the Supreme Court's decision, the existence of procedural difficulty, the medical necessity and the patient's consent are necessarily required in order to allow the legal exceptions in arbitrary uninsured medical benefits. Among the three requirements, the doctor's explanation and the patient's fully informed consent are the most important essentials in this legal conflict. The requirement concerning the doctor's explanation and the patient's consent roles like a hole in the ice as a breathing hole in the arbitrary uninsured medical benefits. The most cases dismissed after Supreme Court Decision 2010DU27639, 27646 Decided June 18, 2012. were due to the defect of three requirements.

• The Korean Society of Law and Medicine
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• v.14 no.2
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• pp.173-214
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• 2013

Traditionally, the Supreme Court has held that medical treatment agreements covered by national health insurance should be distinguished from other medical treatment agreements which are viewed as a consummation of the autonomous free will between doctor and patient. Namely, the Supreme Court views medical treatment agreements covered by national health insurance to be bound by the National Health Insurance Law with the intent to promote the applicability and comprehensiveness of the national health insurance scheme. Yet, issues of voluntary non-reimbursable treatments are triggered not only by the mistakes or moral hazard of medical care institutions but also by systemic limitations of national health insurance coverage criteria. Thus, there is a need for legislative measures that allow certain medical treatments to be included or reflected in the national health insurance coverage system so that patients may receive prompt and flexible medical treatments. To reflect such concerns, the Supreme Court made an exception for voluntary non-reimbursable treatments and developed a strict test to be applied in such cases in Supreme Court Judgment 2010 Doo 27639, 27646 (ruled on June 8, 2012 by the Grand Bench). Such judgment, however, is not a fundamental overturn of the Supreme Court's prior rulings that voluntary non-reimbursable treatments are not allowed under the law. It is only a slight revision of its previous stance for cases in which there is a lack of legislative measures to make coverage of a new yet valid medical treatment possible under the current national health insurance coverage system.

• The Korean Society of Law and Medicine
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• v.13 no.2
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• pp.45-72
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• 2012

The National Health Insurance Corporation has been retrieving from health care providers the payments made to them by insured patients as a result of the health care providers' arbitrary denial of coverage under the National Health Insurance, and has been disbursing such retrieved monies back to the patients, pursuant to Article 57, Sections 1 and 4 of the National Health Insurance Act. However, such practice is an application of the law that lacks legal exactitude. Another problem with such practice is that there is no legal provision under any laws or notices that expressly prohibits arbitrary denial of coverage. A legislative solution, therefore, is called for to address these issues.

• The Korean Society of Law and Medicine
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• v.13 no.2
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• pp.11-38
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• 2012

The Supreme Court stand in the position in specific lawsuit that it doesn't allow the discretionary not covered service, but recently in revocation suit of fine disposal that is imposed on medical fee of leukemia patient, it altered the existing adjudgement and admitted the discretionary not covered service exceptionally. It put forward the allowable condition roughly in that case. According as this alteration, it has become more important to embody the allowance conditions of exceptions. The Supreme Court presented three things, which are procedural condition, medical condition and subscriber's agreement. Concerning procedural condition, several present conciliation procedures are as follows: medical care benefit arret request, relative value conciliation etc, prior request on anti-cancer drug among chemicals which exceed acceptance criteria, request of non benefit object on common drugs. To be granted the existence of those system, there should be no obstacle to use that. Even if it were so, we should take circumstances into consideration; individual situation is unescapable concerning substance and urgency of the discretionary not covered service, process of the procedure, time required etc. Regarding medical condition, safety and effectiveness will be verified through evaluation procedures of new medical skill. About the necessity, the Supreme Court made clear through a sentence that it allow the discretionary not covered service, in case that needs to treat a patient out of the standard of medical benefit. Strict interpretation is right and it answer the purpose of the sentence that the supreme court permit the discretionary not covered service, exceptionally. We need to differentiate medical necessity and medical validity. Subscriber's agreement should holds true if it entails full explanation, and if it is preliminary, explicit and individual. On this account, it should be difficult to admit that someone agree effectively when he call for the affirmation that he is recipient of medical care. Reasonable expense needs to be a part of review whether the agreement is valid. Meanwhile If we adjust system of medical expense and eventually reorganize a fee for consultation payment system (Fee-for-service controlled by item to DRG (Diagnosis Related Groups)), controversial area of the discretionary not covered service will be decreased and that will guarantee the discretion of the doctor.

• The Korean Society of Law and Medicine
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• v.14 no.1
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• pp.303-354
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• 2013

In 2012, the major jurisdictions regarding medical cases caused the controversial issues towards medical and legal fields by getting the judgments from the Supreme Court, which admitted the exceptional admissibility on discretionary grant. By regarding the serial negligence of medical organizations as a separate tort, the sentences which made up irrationality, were spoken by the court. As a result, if the treatment was made, which did not follow the entered matters in medical documents attached, the court announced the jurisdiction that presumes the negligence, which provided the evidence of negligence; on the other hand, this gave had the burden to medical branch to take great care for medicinal treatment. To be applicable for the Principle of Trust, the doctors have to give and take the necessary information for the treatment process and symptom decisions, which also commented in the court. Thus, this case made it difficult to apply the Principle of Trust and considered all the conditions as tough ones, which eventually induced lesser faults for patients' care. Moreover, the court confirmed that the medical ads sending the emails to the members belong to the internet portal sites, are not the inducing behavior by considering that the actions are only medical ads. Furthermore, in the case of Namsu Kim, the court's interpretation was rather limited the definition for medical practice that announced limited Erweiterung der Strafbarkeit cases by lower courts. As a consequence, it is very interesting whether the Supreme Court may change their position and concerning the duty of explanation, the trend to expand the contents and scopes for the duty of explanation continues by admitting instruction explanation obligation and all the compensations and so on.

• The Korean Society of Law and Medicine
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• v.8 no.2
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• pp.69-118
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• 2007

In providing general medical treatments, the medical service contract between the patient and the doctor is the mutually responsible onerous contract. However, the nature of the mutually assumed contract standings of the patient and the doctor has been changing since the implementation of the national health insurance program. For instance, besides the cases of beyond excessive medical charges and medical negligence, if the doctor charged for his/her medical treatments violating the post-treatment/nursing cover criteria, the overpaid medical charge, regardless of being collected with the patient's consent, has to be refunded back to the patient. Medically needed aspects, treatment results, and unfair benefits favoring the patient are not at all taken into consideration in the health insurance scheme. This makes it easier for patients to get refunds for their share of the medical payments by involving the Health Insurance Review & Assessment Service or the National Health Insurance Corporation, without engaging in civil law suits (for reimbursement claim) against doctors. In other words, the doctor's responsibility to provide medical treatments and the patient's responsibility to pay for the medical treatment provided within the contractual realm are being demolished by the administrational arbitration of the National Health Insurance system. The basic rights of medical service providers, and the patient's right to choose are as important constitutional rights, as the National Health Insurance program, which is essential in the social welfare system. Furthermore, the development of the medical fields should not be prevented by the National Health Insurance system. If the medical treatment services can be divided into necessary treatments, general treatments, and high quality treatments, the National Health Insurance is supposed to guarantee the necessary and general treatments to provide medical treatments equally to all the insured with limited financial resources. However, for the high quality treatments, it is recommended that they should not be interfered by the National Health Insurance system, and that they should be left to the private contract between the patient and the doctor.

• The Korean Society of Law and Medicine
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• v.20 no.2
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• pp.231-260
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• 2019

Following the last issue, we summarized the major medical judgments in 2018. Especially, efforts have been made to introduce as many judgments as they relate to the obligation to explain. This is because the limits of the court's judgments were so diverse that it was unknown. Regarding the extent of damages, attention should also be paid to cases where the cost of care is recognized as a large amount, and cases where the memorandum is effective for the increased cost of treatment. The rulings related to the payment and deduction of medical expenses were the most discussed, although the description was small. The case of multi-institutional operation of medical institutions is an interim decision, but it is a case of interest in the medical community, and regarding uninsured medical expenses, cases of discretionary abuse have been reduced compared to the past, but are still significant.

• The Korean Society of Law and Medicine
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• v.15 no.1
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• pp.123-164
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• 2014

Under the new system of 'Separation of pharmaceutical prescription and dispensing' in Korea, which was implemented in 2000, physician could not dispense a medicine, and outpatient should have a physician's prescription filled at a drugstore. After pharmacist makes up outpatient's prescription, National Health Insurance Service(NHIS) pay for outpatient's medicine to pharmacist, except an outpatient's own medicine charge. And NHIS only pay for outpatient's prescription fee to physician and, physician doesn't derive profit from dispensing medicine in itself. Nevertheless, if physician writes out a prescription with violation of 'Criteria for the Medical Care Benefits', NHIS clawed back the payment of outpatient's prescription and medicine from the physician or the medical institution which the physician belongs to. In the past, NHIS's confiscation was in accordance with 'the National Health Care Insurance Act, Article 52, Clause 1'. But, since 2006 when the Supreme Court declared that there was no legal basis on the NHIS's confiscation of outpatient's medicine payment, NHIS had put in a claim for illegal prescriptions on the basis 'the Korean Civil law, Article 750(tort)'. So, Many medical institutions filed civil actions against NHIS. The key point of this actions was whether the issuing outpatient prescriptions with violations of Criteria for the Medical Care Benefits constitute of the law of tort. On this point, the first trial and the second trial took different position. Finally the Supreme Court acknowledged the constitution of the law of tort in 2013. In this paper, the author will review critically the decision of the Supreme Court, and consider the relativeness between the legal effect of Criteria for the Medical Care Benefits and the constitution of the issuing outpatient prescriptions with violations of Criteria for the Medical Care Benefits as the law of tort.

• Neonatal Medicine
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• v.16 no.1
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• pp.25-35
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• 2009

Purpose: The characteristics of hospitalized patients in neonatal intensive care units (NICUs), including hospitalization costs (HC) and National Health Insurance (NHI) status were studied. Methods: We gathered the following data from 7 hospitals in Korea during 2006: the distribution of patients according to birth weight (BW), and the duration of the hospital stay according to BW and He. Results: The patients who were admitted to the NICU consisted of high-risk neonates, including low birth weight or premature neonates, which comprised 50% of all neonates admitted to the NICU. The duration of hospitalization was 75-90 days for neonates with BW <1,000 g, 45-60 days for neonates with BW between 1,000 and 1,499 g, and approximately 15 days for neonates with BW between 2,000 and 2,499 g. The portion of the HC covered by the NHI was 77.1%, 22.9% of the total HC was not covered by the NHI (19.5% was included in the list, but not covered by the NHI and 3.4% was not listed, but covered by the NHI). The average total HC per person was 4,360,000 won, and the HC covered and not covered by the NHI were 3,677,000 won and 1,007,000 won, respectively. The mean HC were as follows; 35,000,000 won for a BW <500 g, 18,000,000 won for a BW between 500 and 999 g, 16,000,000 won for a BW between 1,000 and 1,499 g, and 4,200,000 won for a BW between 1,500 and 1,999 g. Conclusion: Not only premature, but also ill neonates were under the care of the NICU. The HC increased as the BW decreased and the hospitalization period increased. The proportion of the patient's financial burden is >25% of the total He. For this matter, additional NHI is needed.

• Journal of Veterinary Clinics
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• v.23 no.4
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• pp.383-387
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• 2006

This study was performed to clarify the effect of oculo-acupuncture(OA) on change of gastric contraction. Twenty-four clinically healthy mongrel dogs were used and divided into two groups regarding feeding condition; non-acupoint group (n=6) and Stomach/spleen region group (n=6) were stimulated by OA. In addition, 12 dogs were fasted for 24 hrs and divided into two groups; non-acupoint group (n=6) and Stomach/speen region group (n=6) was stimulated by OA. The change in frequency of gastric contraction was measured via abdominal ultrasound before, 0, 30, 60 and 120 minutes after OA. Significant differences were detected at 30 mins (p<0.05), 60 mins (p<0.05) and 120 mins (p<0.01) in the Stomach/speen region group, compared with those of non-acupoint group in feeding condition.