• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.3-26
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• 2015

Recently, Practicing of ghost surgery and duty of informed consent of doctors have become a big issue in the medical dispute and lawsuits. The ground of admitting the informed consent and the agreement(self-determination of patients) can be based on the dignity of man and the right to pursue his happiness guaranteed under Article 10 of the constitution in theory. However there are no explicit legal regulations on the duty of the informed consent and there is no substantive legal enactment on the informed consent, but there is a collision between self-determination of patients and the discretionary power of doctors. If the discretionary power on the duty of the informed consent was extended it may result in the infringement of the right of surgical patients, so called arbitrary medical treatment. Relating to this issue, New Jersey Supreme Court held that a patient has the right to determine not only whether surgery is to be performed on him, but also who shall perform it. Moreover it held that a surgeon who operates without the patient's consent engages in the unauthorized touching of another and, thus, commits a battery'. But there are no ghost surgery cases adopting battery theory in Korea, and professional negligence has been considered rather than the battery, regarding an absence of hostile intent to injure patient. Supreme Court of Korea held that a doctor who operates a medical procedure without the patient's valid prior consent based on wrong diagnosis commits professional negligence resulting in injury, and the patient's invalid consent do not preclude wrongfulness'. However, if a health care provider conducts a completely non-consensual treatment or substitute surgeon without consent, the action should be plead in battery, not negligence, but if a health care provider violate his duty of care in obtaining the consent of the patient by failing to disclosure all relevant information (risks) that a reasonable person would deem significant in making a decision to have the procedure, the action should be plead in negligence, not battery. Therefore, the scope of patients' self-determination can be protected by stating clearly the scope of the duty of the informed consent and the exemption of the informed consent legislatively, it is considered that it is valid to legislate the limitation of the discretionary power.

• The Korean Society of Law and Medicine
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• v.17 no.1
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• pp.209-279
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• 2016

The Korean Mental Health Act was amended 2016 overall. This paper examines and evaluates the old Korean Mental Health Act since 1995 and the new Korean Mental Health Promotion Act 2016 from the Perspective of Human Rights and Inclusion of Persons with Psychosocial Disabilities. The persons with mental disabilities was separated and ruled out from society by the enactment of the Mental Health Act in 1995 and five times amendment. That has been justified and institutionally supported by medical viewpoint. The medical approach which reconsider the persons with mental disabilities as patients conceal that the aims of the involuntary admission in Mental Hospital are protection of society and the relief of the family member's duty of support for person with mental disabilities. This is institutionally supported in the 1995 Korean Mental Health Act by involuntary admission through the consent of family members as protectors. According to the old Act, the family members as protectors are authorized to consent to involuntary admission of persons with mental disabilities. Also, the psychiatrist that diagnoses the person with mental disabilities and evaluates the need for treatment by admission is not impartial in this decision. Family members as protectors may want to lighten their burden of support for the person with mental disabilities in their home by admitting them into a mental hospital, and the psychiatrist in the mental hospital can be improperly influenced by demand of hospital management. Additionally, Article 24 of the Korean Mental Health Act for the Involuntary Admission by the Consent of Family Members as Protector might violate personal liberty, as guaranteed in the Korean Constitution. The Mental Health Promotion Law was amended to reduce the scope of the persons with mental illness which are subject to forced hospitalization and to demand that a second diagnosis is made by another psychiatrist and screening by the committee concerning the legitimacy of admission in the process of the involuntary admission by the consent of family members as a method of protection. The amended Mental Health Promotion Law will contribute to reducing the number of the involuntary admissions and the inclusion of persons with mental disabilities. But if persons with mental disabilities are not providing some kind of service to the community, the amended Mental Health Promotion Law does not work for Inclusion of them.

• Research in Community and Public Health Nursing
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• v.8 no.1
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• pp.116-132
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• 1997

The purpose of the study is to find out how laws related to the nursing profession can be improved by analyzing the rules and regulations concerning nursing. Furthermore, to help settle legal matters in the process of doing nursing work. The data used for the study are the Health and Medical Act, the Maternal and Child Health Act, the School Health Act, the Special Act for Health and Medical Service in Rural Areas, the Industrial Health & Safety Act and the Notice on Nursing Professional Courses analyzed by age and content. The results of the study are as follows : First, basic nursing practice includes 'nursing care for recuperation and assistance in medical treatment and in special areas including the pre-vention of disease, maintenance of health, control of environment, and other therapeutic activities. It is suggested that the phrase 'assistance in medical treatment' should be eliminated as it limits the basic nursing practice to the assistance of the medical treatment. Second, Article 56 of the Health & Medical Act prescribes a special nurse but it does not prescribe a specific job. Accordingly, the new provison concerning the specific jobs of a special nurse should be added or a job guide should be inseated. Third, it is prescribed that those who have completed the training course after obtaining a license are qualified to be a midwife, a special nurse and a nurse practitioner working in special areas. However, school nurses, occupational health nurses and maternal and health workers are required to obtain a nurse license, but not to take an additional training course. Nurses working in special areas should be legally recognized as nurse specialists. The regulations to control various qualification standards consistently should be established. Fourth, the qualifications and types of nurses by area prescribed by Article 54 of the Health and Medical Act are not consistent with those of special nurses as recognized by affiliated organizations of the Korean Nurse Association and some hospitals. Accordingly, the qualifications and types of special nurses should be adjusted in consideration of special nurses. Fifth, as Article 16, Paragraph 2 of the Health and Medical Act does not prescribe the type and scope of first - aid treatment that nurses can provide, the first-aid treatment of nurses might be considered as an unlicensed practice. The specific regulations regarding these matters should be established. Sixth, the contents of the nursing record, which are prescribed by Article 21 of the Health and Medical Act as a duty, include 1) matters concerning body temperature, pulse, breath and blood pressure 2) matters concerning drug prescription 3) matters concerning input and output 4) matters concerning the treatment and nursing care (Article 17 of the Enforcement Regulations, Health and Medical Act). However, these matters are limited to basic nursing care and assistance in medical treatment. The new recording methods on nursing process are suggested to be adopted legally. Seventh, the prescription right entrusted to nurses which are prescribed by the School Health Act, the Special Act on Health and Medical Service for Rural Areas, and the Industrial Health and Safety Act are not consistent with the rights of nurses as prescribed by the Health and Medical Act. New regulations prescribing the partial right for medical treatment entrusted to nurses in consideration of the restraint of time and place in emergency situations should be established.

• Journal of radiological science and technology
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• v.44 no.5
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• pp.513-523
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• 2021

The purpose of this study was to discuss the required items and feasibility of medical records of radiological examinations performed by radiological technologists at medical institutions. An online survey was conducted to a total of 10,000 radiation-related workers, of which 1,026 (10.3%) responded. As a research method, self-made questionnaires were used. The online survey was conducted from September 10 to September 20, 2021 for the survey period. For response data, a Chi-square test was performed according to demographic characteristics using SPSS 27.0 version (IBM Inc., Chicago, Ill, USA), and it was judged to be significant when the P value was less than 0.05. The reliability of the questionnaire response was found to be Chronbach α=0.933. More than 90% of the medical records related to radiological examinations are necessary, and they answered that a curriculum, remuneration curriculum, and legal system for medical records should be prepared. More than 90% of the respondents agreed with the proposal of the Radiological Technologist Independent Act for legal preparation, and most of the information required for medical records is currently recorded in DICOM images. According to the demographic characteristics, the medical record requirement for radiological examination, curriculum, continuing education, and legislation were found to be higher with higher education and higher with longer working experience. In addition, most of the radiology departments showed a high demand for medical records, so most of them responded positively to the medical records requirements for radiological examinations. This study analyzed the medical record requirements for radiological examinations, and as shown in the results, medical record requirements for radiological examinations was found that most radiological technologists felt need for the new law and supported it. In addition, if the information recorded in the DICOM image is used, it is considered that medical records could be easily prepared without additional work by the radiological technologists.

• Journal of Arbitration Studies
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• v.20 no.3
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• pp.47-69
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• 2010

From the review of Korean arbitration systems with the comparison of those of other countries, we can summarize some issues to be tackled as follows: First, Korean arbitration system started with the purpose of export promotion. This may be the main reason that various domestic disputes have not been resolved by arbitration. Second, the Korean Arbitration Law applies to private disputes. The Law's arbitration scope is wider than that of China and France, but narrower than that of the U.S.A. that encompasses a variety of disputes in the filed of consumer, labor, medical services, patents, etc. Third, active judges or public officials in Korea can not be arbitrator and there is no arbitration court. However, if chief judge allows the necessity, court's judges in the UK can be arbitrator with the mutual agreement of the parties and also arbitration system is operated in the court. Fourth, the Korean Commercial Arbitration Board(KCAB), the only representative institution for arbitration in Korea, is under the Ministry of Knowledge Economy(MKE). This makes it difficult for the KCAB to handle other disputes related to the Ministry of Health and Welfare, the Ministry of Strategy and Finance, the Ministry for Food, Agriculture, Forestry and Fisheries, the Ministry of Employment and Labor, etc. Fifth, as mentioned, the KCAB is the unique institution for arbitration by the Law in Korea, while other countries allow have a diversity of arbitration agencies such as maritime arbitration organization, consumer arbitration institution, arbitration court, etc. Therefore, we suggest some ideas to expand the arbitration's area of coverage in Korea as follows: First, there should be more active policies that promote various domestic disputes to be settled by the arbitration system. Second, it is quite needed to expand the scope of arbitration to cover many disputes in the fields of consumer, labor, medical service, advertising, fair trade, etc. Third, there should be discussions to allow court judges as arbitrator and to introduce the arbitration court. Fourth, the KCAB should strengthen its status and roles as general arbitration organization to overcome the limited scope of commercial disputes. For this, there should be the strong support and coordination among the MKE and other government agencies. Fifth, to reduce the burden of the court's complicated and expensive procedures, more efficient disputes resolution systems should be established on the basis of the parties' free will. Each central government agency should streamline the legal barriers to allow industrial organizations under its control to establish their own or joint arbitration system with the KCAB.

• The Korean Society of Law and Medicine
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• v.20 no.1
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• pp.203-242
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• 2019

Since 2006, local governments in Korea have been providing premiums for social insurance, such as the National Health Insurance System, for the health care of local residents. The purpose of this study is to analyze the content of self-governing legislation that defines these policies. The method of conducting the research was based on the articles of the ordinance related to the 'public health insurance premium' of the self-governing statutes published on the website of the National Law Information Center. As of May 2019, 201 municipalities have enacted ordinances to support public health insurance premiums. In the case of state local governments, 8 out of 17 were found, and in the case of basic local governments, 193 out of 226. The constitution of the ordinance consisted of purpose, time of enactment, type of social insurance premium, object of social insurance premium, amount of social insurance premium support, method and process of social insurance premium support, time of social insurance premium support. This study analyzed contents of these articles. Finally, this study presented issues that could be controversial from the policy and legal viewpoints and suggestions for improvement.

• The Korean Society of Law and Medicine
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• v.21 no.3
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• pp.145-178
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• 2020

This paper examines discussions surrounding cognitive liberty, neuro-privacy, and mental integrity from the perspective of Neuro-rights. The right to control one's neurological data entails self-determination of collection and usage of one's data, and the right to object to any way such data may be employed to negatively impact oneself. As innovations in neurotechnologies bear benefits and downsides, a novel concept of the neuro-rights has been suggested to protect individual liberty and rights. In Oct. 2020, the Chilean Senate presented the 'Proyecto de ley sobre neuroderechos' to promote the recognition and protection of neuro-rights. This new bill defines all data obtained from the brain as neuronal data and outlaws the commerce of this data. Neurotechnology, especially when paired with big data and artificial intelligence, has the potential to turn one's neurological state into data. The possibility of inferring one's intent, preferences, personality, memory, emotions, and so on, poses harm to individual liberty and rights. However, the collection and use of neural data may outpace legislative innovation in the near future. Legal protection of neural data and the rights of its subject must be established in a comprehensive way, to adapt to the evolving data economy and technical environment.

• The Journal of the Korea Contents Association
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• v.16 no.1
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• pp.585-594
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• 2016

This study is aimed at researching and analyzing the students' recognition and practice of the patents medical information, who are majoring in medical records and will be working as medical records technician, letting them recognize the importance of information, and at offering basic data required for development of medical records curriculum and for establishment of medical records protection policy. This study was conducted from 18th May through 6th June 2015, targeting 340 students enrolled four universities, by t-test, variance analysis, Pearson correlation analysis and multiple regression analysis. As a result of this study, the point of protection recognition and practice recognition is 3.55 and 3.49, respectively, out of 5. With regard to recognition of medical information protection, there was a significant difference in grade, satisfaction for major, experience of medical information protection education and recognition of law, while for recognition of practice, in grade, satisfaction for major, educational experience and damage of medical information exposure. Recognition of protection and recognition of practice had a significant static correlation, and recognition of information exposure, recognition of social issue and recognition of legal system had significant positive effect on recognition of practice. In order to raise the recognition of protection and recognition of practice, based on this study, it is considered necessary for the universities to educate the damage of medical information exposure and importance of medical records management, and to raise the students' recognition.

• Journal of Acupuncture Research
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• v.33 no.2
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• pp.117-133
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• 2016

Objectives : Traditional Korean Emergency Medicine (EM) has been developing for thousands of years, however its value was not properly considered after 19th century modernization. The purpose of this study was to review the current status of EM in Korean Medicine and suggest methods for improvement. Methods : We performed systematic reviews of the definition, current medical system, and educational curriculum of EM in Western Medicine, traditional Korean and Chinese Medicine, and integrated Western and traditional Chinese medicine with the use of medical classics and text books. We also analyzed the trends in published research articles to discuss the current situation in the field of traditional Korean EM, and to provide methods for its establishment and development with traditional Korean medicine. Results : The definition of EM as a treatment of acute disease shares common understanding among traditional Korean, Chinese, and Western medicine. We presented descriptions of EM in many medical classics, however current law and EM service does not include these. As for the review of publications during the last 20 years, we found 21 articles in several fields that confirmed the need for more investigation. Conclusion : Traditional Korean EM has a long history and clinical experiences that can be found in medical classics, textbooks and research articles. There is an urgent need for more studies on traditional Korean EM as an emergency medical service system, and in terms of educational curriculum and related policies to improve Evidence-Based teaching.

• Tuberculosis and Respiratory Diseases
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• v.58 no.3
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• pp.213-229
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• 2005

The first and the longest criminal indictment case of Korean medico-legal battle, so called BORAMAE Hospital Incident, was finally on its end by Korean Supreme Court's decision on June 24, 2004, after 7 years long legal dispute via Seoul District Court and Seoul Superior Appeal Court's decision. Boramae Hospital case was the first Korean legal case of Withdrawing Life-sustaining treatment of mechanical respirator on 58 years old Extradural Hematoma victim who was on Respirator under Coma after multi-organ failure postoperatively(APACHE II score: 34-39). Two physicians who have involved patient's care and had helped to make discharge the Near-death patient to home after repeated demand of patient's wife, due to economic reason, were sentenced as homicidal crime. This review article will discuss the following items with the review of US cases, Quinlan(1976), Nancy Cruzan(1990), Barber (1983), Helen Wanglie(1990), Baby K (1994) and Baby L cases, along with Official Statement of ATS and other Academic dignitaries of US and World.: [1] Details of Boramae Hospital incident, medical facts description and legal language of homicidal crime sentence. [2] The medical dispute about the legal misinterpretation of patient's clinical status, regarding the severity of the victim with multi-organs failure on Respirator under coma with least chance of recovery, less than 10% probability. [3] Case study of US, of similar situation. [4] Introduction of ATS official Statement on Withdrawing/ Withholding Life sustaining treatment. [5] Patient Autonomy as basic principle. [6] The procedural formality in Medical practise for keeping the legitimacy. [7] The definition of Medical Futility and its dispute. [8] Dying in Dignity and PAS(Physician Assisted Suicide)/and/or Euthanasia [9] The Korean version of "Dying in Dignity", based on the Supreme Court's decision of Boramae Hospital incident (2004.6.24.) [10] Summary and Author's Note for future prospects.