Medical Criminal Matters

Where a medical professional's negligence results in the death of or injury to a patient, the professional is punished for occupational negligence causing death or injury under Article 268 of the Criminal Act.

▶ Requirements for Establishment

▶ Related Precedents

A representative example is a case in which a medical professional fails to fulfill the duty of care during the ordinary course of treatment or surgery, resulting in organ damage, excessive bleeding, or the like.

An investigation is commenced upon a criminal complaint by the patient or an accusation by the bereaved family, and whether negligence exists is determined through an appraisal procedure centered on the medical professional's treatment judgment and the appropriateness of the medical practice.

▶ Article 268 of the Criminal Act

Where a medical practitioner falsely prepares a diagnosis, an autopsy report, or a certificate, the practitioner is punished under Article 233 of the Criminal Act.

For example, this applies where a medical practitioner prepares an injury diagnosis for the purpose of insurance fraud, or prepares a false hospitalization record even though hospitalization was not actually necessary.

Because medical documents have significant legal effect, false preparation is dealt with strictly, and a sentence of imprisonment may be imposed.

▶ Article 233 of the Criminal Act

Forging medical records, prescriptions, or similar documents, or actually using a falsely prepared document, is punishable under the Criminal Act.

For example, this includes cases in which, in the course of operating a medical institution or responding to a subsequent dispute, treatment dates are falsely manipulated, or medical records are prepared and submitted as if a procedure that did not exist had been performed.

▶ Level of punishment

Where a medical professional or a worker at a medical institution discloses or announces externally a patient's health information learned during treatment, they are subject to criminal punishment under Articles 19 and 88 of the Medical Service Act.

For example, this applies to disclosing a celebrity's diagnosis or treatment details on social media or the like, or a case in which an internal staff member of a medical institution provides a patient's information to a third party without justifiable grounds.

It is also regarded as a violation of the medical professional's professional ethics, and beyond punishment, it may also lead to administrative dispositions such as license suspension.

▶ Article 19 of the Medical Service Act (Prohibition of Disclosure of Information)

▶ Level of punishment

Where treatment costs are overcharged through false medical records, or where nonexistent procedures are billed, the crime of fraud under Article 347 of the Criminal Act applies.

Representative cases include false billing of treatment costs to the National Health Insurance Service or automobile insurers, false hospitalization, and the mobilization of fake patients.

▶ Criminal Act, Article 347

Where a person has been booked as a suspect, the principle is that the investigation proceeds without detention.

Under Article 198 of the Criminal Procedure Act, the investigation of a suspect must, as far as possible, be conducted without detention, and the investigative agency must respect the human rights related to the suspect and thoroughly maintain confidentiality.

This serves as a minimum line of defense in an investigation procedure that can deal a serious blow to a medical professional's honor and professional standing.

A suspect may refuse to make a statement during questioning by an investigative agency.

The Constitution and the Criminal Procedure Act guarantee a suspect the right to refuse to make a statement, and before interrogating a suspect, an investigative agency must notify the suspect of the following matters.

A suspect may appoint defense counsel at any time and have counsel present during questioning.

Under Article 30 of the Criminal Procedure Act, not only the suspect but also the legal representative, spouse, and lineal relatives may appoint defense counsel.

In addition, absent special circumstances, the investigative agency must allow the participation of defense counsel during the questioning of the suspect.

This is an important safeguard that allows a person to carefully decide the direction of their statements with the assistance of defense counsel from the early stage of the investigation.

In criminal cases such as assault and infliction of bodily injury, a victim may file a criminal complaint or accusation against the perpetrator, but the victim is also guaranteed the right to withdraw the complaint or accusation.

In particular, one of the grounds for withdrawing a complaint or accusation is an amicable settlement between the victim and the person complained against.

Therefore, in medical criminal cases, settlement with the victim can significantly affect not only the level of criminal punishment of the medical professional or medical institution, but also the future possibility of maintaining the license and continuing to practice medicine.

There is no specific form prescribed by law for the method of settlement, but it generally proceeds through the following steps.

In the case of a crime that is not a crime not punishable against the victim's will, such as occupational negligence causing injury in medical practice, where the matter does not turn on the victim's intent regarding punishment, the criminal procedure proceeds regardless of the victim's intent.

However, where a settlement with the victim has been reached, the prosecutor and the court reflect this as a favorable circumstance in determining the sentence.

In addition, if an application for a compensation order is granted during the criminal proceedings, the issue of damages for the victim can be resolved simultaneously in the criminal trial, without a separate civil litigation procedure.