• 의료법학
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• 제13권1호
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• pp.295-329
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• 2012

A medical malpractice case requires special legal protection, considering its characteristics, such as seriousness and long term effects of its damages, medical information asymmetry between practitioners and patients, and difficulties in realization of liability. Taking the points above into consideration, Medical Malpractice Arbitration Act of 2012(MAA) has legislative intent to protect the rights of the injured from medical malpractice, while protecting the stability of medical practice by providing arbitration as an alternative dispute resolution. However, constitutional review is required for one new scheme of compensation for medical injuries during delivery, which is implemented in MAA of 2012, especially with regard to freedom to exercise occupation, property, equality under the Constitution. Two important aspects are 1. according to the law, absolute liability applies to compensation for damages during delivery without negligence of practitioners; and 2. the practitioner bears some portion of the cost, 30% in the law above. This article aims to analyze this new institution in various aspects of the Constitution, and, as a result, it does not comply with constitutional criteria.

• 대한예방의학회:학술대회논문집
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• 대한예방의학회 2000년도 제52차 추계학술대회 연제집
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• pp.193-194
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• 2000

• 의료법학
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• 제16권2호
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• pp.295-326
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• 2015

2012. 2. 1. 의료법이 개정되며 의료인은 2개 이상의 의료기관을 개설할 수 없을 뿐 아니라 운영에도 관여할 수 없게 되었다. 그러나 이러한 개정 법률의 입법목적이 무엇인지 불분명할 뿐 아니라 여러 제반사정을 기초로 입법목적을 확정하더라도 개정 법률이 그러한 목적을 달성하기에 적합한 수단이 되기 어렵다. 이 글에서는 의료법 개정 경과와 의료기관 1인 1개설주의의 연혁, 개정 의료법의 입법목적을 확정 검토하는 한편, 개정 의료법이 제한하는 기본권과 명확성의 원칙, 과잉금지원칙을 토대로 동 법률의 위헌성을 살펴보기로 한다.

• 의료법학
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• 제9권2호
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• pp.209-229
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• 2008

When we are totalizing the lawsrelated to the medical, as the Laboratory medical testing is a kind of the medical act, it is the regulation that the medical technologist can analyze the specimen using in vitro diagnostic devices and diagnosticdrugs under the guidance of doctor or dentist from a corresponding medical institution and can report through verification and interpretation. However, in real medical fields, 'the guidance of doctor' is seriously in-sufficient or even the person who is not the medical technologist is executing. Furthermore the cases that produce inspection results with devices or reagents which are not validated nor approved have been frequently occurred. The result of Laboratory medical testing derived from this procedure can become the important information for the disease control of a country, and also can be decisive to the definite diagnosis and the prognostic monitoring about the patient disease. In spite of its significant medical act to be applicable to an unique proof with the related expert appraisal result in the medical mal-practice lawsuit, our reality in which the quality control is not properly working due by the costs and the labor shortage related to the Laboratory medical testing is quietly in bad condition. Even from now, the government should recognize the significance of the Laboratory medical testing and must achieve more strict administrative management as well as the law maintenance.

• 의료법학
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• 제13권1호
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• pp.359-395
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• 2012

In a broad term, health and medical data means all patient information that has been generated or circulated in government health and medical policies, such as medical research and public health, and all sorts of health and medical fields as well as patients' personal data, referred as medical data (filled out as medical record forms) by medical institutions. The kinds of health and medical data in medical records are prescribed by Articles on required medical data and the terms of recordkeeping in the Enforcement Decree of the Medical Service Act. As EMR, OCS, LIS, telemedicine and u-health emerges, sharing and protecting digital health and medical data is at issue in these days. At medical institutions, health and medical data, such as medical records, is classified as "sensitive information" and thus is protected strictly. However, due to the circulative property of information, health and medical data can be public as well as being private. The legal grounds of health and medical data as such are based on the right to informational self-determination, which is one of the fundamental rights derived from the Constitution. In there, patients' rights to refuse the collection of information, to control recordkeeping (to demand access, correction or deletion) and to control using and sharing of information are rooted. In any processing of health and medical data, such as generating, recording, storing, using or disposing, privacy can be violated in many ways, including the leakage, forgery, falsification or abuse of information. That is why laws, such as the Medical Service Act and the Personal Data Protection Law, and the Guideline for Protection of Personal Data at Medical Institutions (by the Ministry of Health and Welfare) provide for technical, physical, administrative and legal safeguards on those who handle personal data (health and medical information-processing personnel and medical institutions). The Personal Data Protection Law provides for the collection, use and sharing of personal data, and the regulation thereon, the disposal of information, the means of receiving consent, and the regulation of processing of personal data. On the contrary, health and medical data can be inspected or delivered of the copies, based on the principle of restriction on fundamental rights prescribed by the Constitution. For instance, Article 21(Access to Record) of the Medical Service Act, and the Personal Data Protection Law prescribe self-disclosure, the release of information by family members or by laws, the exchange of medical data due to patient transfer, the secondary use of medical data, such as medical research, and the release of information and the release of information required by the Personal Data Protection Law.

• 의료법학
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• 제11권2호
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• pp.337-361
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• 2010

In the case of Korea, both of modern medicine and oriental medicine are admitted as medical practices in the system. In other words, healthcare system is dualized. However, medical practice that corresponds to oriental medicine in Korea is substitution of medical practice in cases of foreign countries. For use of medical devices, it is provided only for doctors and medical technician relevant to use. Particularly, although oriental medicine is recognized as orthodox medicine in terms of the features of Korean medical system, superintendency of oriental doctors is not identical with that of doctors for use of medical devices and superintendency toward medical technicians. Recently, Cheongju District Court decided that superintendency of oriental doctor upon physical therapist is not acknowledged. It can be said that the judgement is opposed to the original verdict which judged that oriental doctors' employment and guidance of oriental doctors upon physical therapist is permissible. Hence this study aimed to review on domestic medical law system, which is dualized, roles of medical professionals, intent of the medical license system, provisions related to medical technician law and relevant precedents. Regulations on practices other than licensed practices by medical professionals are made because medical practices may affect on danger toward life and body of human and public health also. Therefore, the nation regulates medical professionals having licenses to perform medical practices within the range of the licenses. It is clearly prescribed that medical technicians may perform medical practices under instructions of doctors or dentists pursuant to the medical technician law. In addition, the court also judges that it is out of the license of oriental doctors if they use CT devices and limits the use of modern medical devices by oriental doctors. That is to say that it limits oriental doctors' employment of medical technicians and pursuant of oriental doctors on medical technicians as well.

• KIEAE Journal
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• 제17권1호
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• pp.55-61
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• 2017

Purpose : As the necessity of reinforcement of infections management in medical facilities after MERS increased, Ministry of Health and Welfare promulgated the enforcement regulations of medical law on February 3, 2017. Its main objective is to improve patients' safety and medical-care quality through the establishment of isolation facilities from infectious diseases and the set-up of standards for In-patient and ICU facilities. The purpose of this study is necessarily to propose a standardized spatial composition model for ward modules by analyzing changing environments of in-patient facilities according to the strengthened medical law. Method: Theoretical studies will be undergone of Evidence-based Designs to improve patients' safety, medical quality, and domestic/overseas in-patient room guidelines. With reference to the status of 24 general hospitals over 500 beds, the spatial compositions of the in-patient rooms and the types of multi/single bed room modules will be analyzed. The directions of future in-patient room module changes through the study of the minimum ward module types and various ward types will be presented. Result: This paper will hopefully provide guidelines for hospitalization rooms that can be applied to the revised rules of medical law enforcement and provide a basis for a comprehensive study of patients' safety and efficient infection control as well.

• 의료법학
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• 제14권2호
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• pp.49-80
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• 2013

The Issuance of false medical certificates on Criminal Law or the Medical Service Act are frequently applied to the insurance fraud cases related with the medical certificate, prescriptions. The meaning of medical certificate is not defined on the crime of Issuance of false medical certificates, but considering the rule of Paragraph 1 of Article 17 of the Medical Service Act, which punishes drawing up the medical certificate by anyone except the doctor who has directly examined, and the principle of legality, the medical certificate applied with the crime of Issuance of false medical certificates should (1) include the judgment after current medical ex-amination, (2) be written for the purpose of verifying the health status and (3) have a style that can be recognizable as medical document usually written by doctors. In addition, since there have been many argues on the range of application of the Paragraph 1 of Article 17 of the Medical Service Act, which generally regulates various kinds of documents such as medical certificates, prescriptions and others, which have different purpose and characters, the range of application of the clause above is needed to be interpreted strictly.

• 의료법학
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• 제16권2호
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• pp.131-157
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• 2015

국민건강보험공단은 의사가 요양급여기준을 위반하여 처방을 함으로써 국민건강보험공단이 약국에 약제비를 지급하게 된 것은 의사가 국민건강보험공단에 대해 민사상 불법행위를 한 것이라고 주장하며 손해배상청구를 하였다. 대법원이 이를 인정하는 판결이 잇따르자, 국민건강보험공단은 의사들이 의료법을 위반하여 진료를 하여 약국에 지급하게 된 약제비나 해당 의료기관에 지급하게 된 요양급여비용에 대해서도 모두 국민건강보험공단에 대한 민법상 불법행위라고 주장하며 손해배상을 청구하였으며, 대법원은 이를 모두 인정하였다. 그러나 우리나라 국민건강보험제도에서 보험급여의 주체는 국민건강보험공단이며, 환자가 의료기관에 진료를 요청하여 의료기관이 행하는 요양급여 역시 보험급여이므로 이러한 요양급여를 행하는 주체 역시 국민건강보험공단이다. 그리고 국민건강보험법은 의사의 의료법위반행위를 규제하기 위해 만든 법이 아니므로 의사의 의료법 위반행위를 국민건강보험공단에 대한 민법상 불법행위책임에서의 위법성으로 포섭할 수 없다. 그렇다면 환자가 보건복지부장관으로부터 부여 받은 면허를 가진 의사에 의해 요양급여기준에 맞는 진료를 받은 경우에는 국민건강보험공단은 민법상 환자에게 요양급여를 해 줄 의무를 면하는 이득을 얻었으므로 설사 해당 의사가 진료를 하는 과정에 의료법을 위반한 행위를 하였더라도 국민건강보험공단으로서는 손해가 없다. 대법원이 의료법위반으로 진료를 한 행위를 모두 국민건강보험공단에 대한 민법상 불법행위책임으로 인정하는 것은 국민건강보험공단이 보험급여의 주체로서 보험급여를 해 줄 의무를 면하였다는 이득은 고려하지 않고, 오로지 의사에게 요양급여비용을 지급하였다는 측면만을 고려한 것으로서 민법 제750조의 법리에 어긋난다. 의사가 의료법을 위반하였다면 의료법에 따라 제재를 받을 일이지, 국민건강보험법으로 규율할 일이 아니며, 대법원이 위와 같이 판결한 것은 국민건강보험법의 법리와 민법의 법리를 혼동한 탓으로 생각된다.

• 의료법학
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• 제10권2호
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• pp.427-453
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• 2009

This study aims to review legal problems of similar medical practice and suggest methods of improvement. Similar medical practice refers to all medical practices conducted in the state that human qualification is not fulfilled. It may cause serious damages on health and lives of national people. Currently, similar medical practices are recognized as unlicensed medical practices and prohibited based on the Medical law and additionally punished by then special law in Korea. However, the current Medical Law does not provide clear and accurate concept of medical practices so that it is difficult to regulate similar medical practices. The issue of complementary and alternative therapy related to similar medical practices is also in special state different from other countries. In addition, since similar medical practices lack of evidences in terms of safety, the dangerousness of accidents is high and it may affect badly on health of national people and health care policies. Methods of improvement in order to resolve problems regarding similar medical practices are: first, concept and scope of medical practice should be clear, accurate and concrete. Second, complementary and alternative therapies related to similar medical practices need to be strictly examined and the supervisory right should be given to doctors should be given even though a part of it is allowed. Third, research institutes specialized in the field should be established for scientific examination of complementary and alternative therapy and objective research results should be open to the public. Finally, since damage cases caused by similar medical practices by non-medical personnel, national management and supervision for similar medical practices should be reinforced.