CONTENTS
- 1. The Circumstances of the Case That Led the Client to Seek Out an Attorney Specializing in Medical Litigation
- - Examining the Statutes Relevant to the Case with a Medical Attorney
- 2. The Defense Strategy of the Attorney Specializing in Medical Litigation
- - A Medical Attorney Who Emphasized the Absence of Harm
- - A Medical Attorney Who Emphasized the Absence of a Criminal Record
- 3. As a Result of the Assistance of the Attorney Specializing in Medical Litigation, a "Suspended Sentence"
1. The Circumstances of the Case That Led the Client to Seek Out an Attorney Specializing in Medical Litigation
The client who needed the help of a medical litigation attorney.
The client came to the medical litigation attorney while under suspicion of a Violation of the Medical Service Act, with the prosecutors' indictment already completed and a medical trial imminent.
The detailed circumstances are as follows.
The client was the director of a hospital and a specialist in orthopedic surgery.
Among the surgeries the client performed, there were some that required spinal anesthesia, and spinal anesthesia was a medical procedure that only an anesthesiology specialist could perform.
The client had tried for a long time to hire an anesthesiology specialist but was unable to find one.
Accordingly, the client proposed to hire an employee who was a nurse anesthetist assisting with anesthesia as the head of the anesthesiology department and to have that person take charge of spinal anesthesia.
Spinal anesthesia was an act that a nurse anesthetist could not perform independently, and the client's act of having someone perform a medical procedure beyond what was licensed constituted a Violation of the Medical Service Act.
The nurse consented to this, and the Violation of the Medical Service Act continued for about one year.
In addition, in order to conceal the violation, the client also committed a Violation of the Medical Service Act by recording in the signature column of the anesthesia records as if an anesthesiology specialist, rather than the nurse, had personally administered the spinal anesthesia.
These acts were soon detected, and the client was facing a medical trial on suspicion of a Violation of the Medical Service Act and was at risk of being punished.
Accordingly, in order to avoid at least a heavy actual sentence, the client came to a medical litigation attorney with abundant experience in Violation of the Medical Service Act cases.
Examining the Statutes Relevant to the Case with a Medical Attorney
■ Medical Service Act Article 27 (Prohibition of Unlicensed Medical Practice, etc.)
(1) No person who is not a medical person may engage in medical practice, and a medical person also may not engage in medical practice beyond what is licensed.
■ Medical Service Act Article 87-2 (Penal Provisions)
(2) A person who falls under any of the following subparagraphs shall be punished by imprisonment with labor for not more than 5 years or a fine not exceeding 50 million won.
2. A person who violates Article 12 (2) and (3), Article 18 (3), Article 21-2 (5) and (8), Article 23 (3), Article 27 (1), Article 33 (2) (limited to cases applied mutatis mutandis under Article 82 (3)) and (8) (including cases applied mutatis mutandis under Article 82 (3)) and (10). Provided, that as for the crime under Article 12 (3), prosecution may not be instituted against the express will of the victim.
■ Medical Service Act Article 22 (Medical Records, etc.)
(3) A medical person shall not falsely prepare medical records, etc., or intentionally add to, or modify, them in a manner inconsistent with the facts.
■ Medical Service Act Article 88 (Penal Provisions)
A person who falls under any of the following subparagraphs shall be punished by imprisonment with labor for not more than 3 years or a fine not exceeding 30 million won.
1. A person who violates Article 19, Article 21 (2) (including cases applied mutatis mutandis under Article 40-2 (4)), Article 22 (3), Article 27 (3) and (4), Article 33 (4), the proviso to Article 35 (1), Article 38 (3), Article 47 (11), Article 59 (3), Article 64 (2) (including cases applied mutatis mutandis under Article 82 (3)), and Article 69 (3). Provided, that prosecution of a person who violates Article 19, Article 21 (2) (including cases applied mutatis mutandis under Article 40-2 (4)), or Article 69 (3) requires a complaint.
■ Criminal Act Article 30 (Co-principals)
When two or more persons jointly commit a crime, each of them shall be punished as a principal offender of that crime.
2. The Defense Strategy of the Attorney Specializing in Medical Litigation
First, the medical litigation attorney of this firm established a defense strategy for the case together with a medical litigation expert with abundant experience in cases similar to the client's.
The client, who had committed various acts in Violation of the Medical Service Act, was in a situation where an actual sentence such as imprisonment with labor could be imposed.
Taking this into account, the attorney sought a strategy to defend against the punishment as much as possible.
A Medical Attorney Who Emphasized the Absence of Harm
The client acknowledged his own fault in unlawfully administering anesthesia and was deeply repentant for his conduct.
And fortunately, there were no patients who suffered harm as a result of the client's conduct.
The medical litigation attorney emphasized the fact that no harm had occurred to patients as a result of the client's Violation of the Medical Service Act, and requested that the lightest possible disposition be imposed in the medical litigation.
A Medical Attorney Who Emphasized the Absence of a Criminal Record
Apart from the previous Violation of the Medical Service Act, the client had no record of having been subject to medical litigation or investigation.
Therefore, he had no prior record of punishment for the same type of crime, and he also had no prior record of any different type of offense other than the present Violation of the Medical Service Act that led to the medical litigation.
The medical litigation attorney requested leniency on the grounds that the client was a first-time offender, was deeply reflecting, and had no likelihood of reoffending.
3. As a Result of the Assistance of the Attorney Specializing in Medical Litigation, a "Suspended Sentence"
The court that heard the medical litigation accepted all of the medical litigation attorney's pleadings and imposed a suspended sentence on the client.
In response, the client expressed gratitude, stating that he had been able to escape the risk of a heavy punishment.
However, an important point is the fact that this case predates the amendment of the Medical Service Act.
At present, if a medical person receives a sentence of imprisonment without labor or heavier, including a suspended sentence or suspension of sentencing, it constitutes grounds for license revocation.
Therefore, if you wish to protect your medical license and to conclude the matter swiftly before medical litigation proceeds, it is important to receive the assistance of a medical attorney.
If you are concerned about a heavy punishment in a situation similar to that of the client in this Violation of the Medical Service Act case, please come to the medical litigation attorney of Daeryun Law Firm, and we will consult with you sincerely and accompany you throughout the entire medical litigation process.
This content is based on actual case studies of Daeryun Law LLC with some adaptations, and the copyright belongs to our firm.
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