• The Korean Society of Law and Medicine
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• v.24 no.2
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• pp.147-196
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• 2023

Advances in brain science have made it possible to stimulate the brain to treat brain disorder or to connect directly between the neuron activity and an external devices. Non-invasive neurotechnologies already exist, but invasive neurotechnologies can provide more precise stimulation or measure brainwaves more precisely. Nowadays deep brain stimulation (DBS) is recognized as an accepted treatment for Parkinson's disease and essential tremor. In addition DBS has shown a certain positive effect in patients with Alzheimer's disease and depression. Brain-computer interfaces (BCI) are in the clinical stage but help patients in vegetative state can communicate or support rehabilitation for nerve-damaged people. The issue is that the people who need these invasive neurotechnologies are those whose capacity to consent is impaired or who are unable to communicate due to disease or nerve damage, while DBS and BCI operations are highly invasive and require informed consent of patients. Especially in areas where neurotechnology is still in clinical trials, the risks are greater and the benefits are uncertain, so more explanation should be provided to let patients make an informed decision. If the patient is under guardianship, the guardian is able to substitute for the patient's consent, if necessary with the authorization of court. If the patient is not under guardianship and the patient's capacity to consent is impaired or he is unable to express the consent, korean healthcare institution tend to rely on the patient's near relative guardian(de facto guardian) to give consent. But the concept of a de facto guardian is not provided by our civil law system. In the long run, it would be more appropriate to provide that a patient's spouse or next of kin may be authorized to give consent for the patient, if he or she is neither under guardianship nor appointed enduring power of attorney. If the patient was not properly informed of the risks involved in the neurosurgery, he or she may be entitled to compensation of intangible damages. If there is a causal relation between the malpractice and the side effects, the patient may also be able to recover damages for those side effects. In addition, both BCI and DBS involve the implantation of electrodes or microchips in the brain, which are controlled by an external devices. Since implantable medical devices are subject to product liability laws, the patient may be able to sue the manufacturer for damages if the defect caused the adverse effects. Recently, Korea's medical device regulation mandated liability insurance system for implantable medical devices to strengthen consumer protection.

• The Korean Society of Law and Medicine
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• v.24 no.1
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• pp.101-130
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• 2023

Korea has very easy access to tertiary hospitals, including university hospitals, among OECD countries, and patients can reach the emergency room of a university hospital within 1-2 hours. However, there are many so-called 'essential medical' blind spots where people die because they do not receive surgery in time. In particular, in the case of essential medical care in the surgical field, despite basic surgery, there is a shortage of medical staff to perform outpatient surgery in emergency situations at university hospitals. Although this lack of manpower has a problem with low insurance premiums for surgery, it also has a very large impact on the burden of criminal liability for medical malpractice, which increases the incidence in case of emergencies. Here, we propose crime immunity to solve the manpower shortage of converged smart surgical essential medical (SES) hospitals. Currently, the medical community agrees on the need for crime immunity, but it is an ambiguous scope of immunity that has not reached a national consensus. We would like to present clear standards for essential medical practices (surgery) that require criminal immunity.

• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.177-219
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• 2016

A commercial advertisement is not only a way of competition but also a medium of communication. Thus, it is under the constitutional protection of the freedom of business (article 15 of the Constitution) as well as the freedom of press [article 21 (1) of the Constitution]. In terms of the freedom of business or competition, it should be noted that an unfair advertising (false or misleading advertisement) can be regulated as an unfair competition, while any restraint on advertising other than unfair one might be doubted as an unjustifiable restraint of trade. In terms of the freedom of press or communication, it is important that article 21 (2) of the Constitution forbids any kind of (prior) censorship, and the Constitutional Court applies this restriction even to commercial advertising. In this article, the applicability of these schemes to advertising of the so-called learned professions, especially physician, are to be examined, and some proposals for the reformation of the current regulatory regime are to be made. Main arguments of this article can be summarized as follows: First, the current regime which requires advance review of physician advertising as prescribed in article 56 (2) no. 9 of Medical Act should be reformed. It does not mean that the current interpretation of article 21 of the Constitution is agreeable. Though a commercial advertising is a way of communication and can be protected by article 21 (1) of the Constitution, it should not be under the prohibition of censorship prescribed by article 21 (2) of the Constitution. The Constitutional Court adopts the opposite view, however. It is doubtful that physician advertising needs some prior restraint, also. Of course, there exists severe informational asymmetry between physicians and patients and medical treatment might harm the life and health of patients irrevocably, so that medical treatment can be discerned from other services. It is civil and criminal liability for medical malpractice and duty to inform and not regulation on physician advertising, to address these differences or problems. Advance review should be abandoned and repelled, or substituted by more unproblematic way of regulation such as an accreditation of reviewed advertising or a self-regulation preformed by physician association independently from the Ministry of Health and Welfare or any other governmental agencies. Second, the substantive criteria for unfair physician advertising also should correspond that of unfair advertising in general. Some might argue that a learned profession, especially medical practice, is totally different from other businesses. It is performed under the professional ethics and should not persue commercial interest; medical practice in Korea is governed by the National Health Insurance system, the stability of which might be endangered when commercial competition in medical practice be allowed. Medical Act as well as the condition of medical practice market do not exclude competition between physicians. The fact is quite the opposite. Physicians are competing even though under the professional ethics and obligations and all the restrictions provided by the National Health Insurance system. In this situation, regulation on physician advertising might constitute unjustifiable restraint of competition, especially a kind of entry barrier for 'new physicians.'

• The Korean Society of Law and Medicine
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• v.18 no.1
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• pp.297-341
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• 2017

We searched out court rulings on medical affairs through court library search sites and specialized articles on medically relevant judgments sentenced in 2016. And we selected and analyzed the judgements of the court we considered important as follows. In relation to the medical civil judgements, (1) In the case of applying surgery for female infertility during cesarean section operation but it has not been done, we expressed the regret for the lack of judgment in the process of entering the medical contract, introducing the rights infringed and the scope of compensation, (2) We pointed out that the ruling on the medical malpractice estimation goes out of limit of negligence estimation doctrine, and that the court asked very high degree duty of the traditional Korean medicine doctors to cooperate with Western medicine doctors. (3) In the case of admitting hospital's 100% responsibility, we pointed out the court overlooked the uncertainty and good intention of the medical practice. (4) Additionally, We introduced the cases admitted the hospital's responsibility in the accident related to the psychiatric patients in closed ward. Relating to a medical criminal ruling, we analyzed the supreme court decision about whether the dentist's Botox injection on the patient's face is a medical practice within the scope of the license from the viewpoint whether it is within the possible range of the word. And, concerning decisions on healthcare administration, (1) we analyzed the case about when medical personnel operate multiple medical institutions, whether it is possible to get back medical care costs under the National Health Insurance Law, (2) We commented on the ruling regarding explanation obligation in terms of object, degree, subject of explanation as a prerequisite for permissible arbitrary uninsured benefits. Finally, we reviewed the decision of the Constitutional Court about the Article 24 of the Mental Health Law, which it had allowed for a mental patient to be hospitalized forcibly by the consent of two guardians and a diagnosis of a psychiatrist. Also we indicated the problems of the revised Mental Health Law.