CONTENTS
- 1. Violation of the Medical Service Act, a Case in Which a Nurse's Bone Marrow Collection Was at Issue
- - Violation of the Medical Service Act, the Determinations of the Court of First Instance and the Appellate Court on Whether the Nurses' Bone Marrow Collection Was Lawful
- 2. Violation of the Medical Service Act, the Supreme Court's Determination on Whether the Nurses' Bone Marrow Collection Was Lawful
- 3. Violation of the Medical Service Act, Daeryun's Strategy?
1. Violation of the Medical Service Act, a Case in Which a Nurse's Bone Marrow Collection Was at Issue
This is a case in which, with respect to a violation of the Medical Service Act, the question was whether a nurse's bone marrow collection violated the Medical Service Act.
Twelve professors in the departments of hematology, oncology, and pediatric hematology-oncology at Asan Medical Center, affiliated with the Asan Foundation, were indicted on charges of directing unlicensed medical practice by having nurses belonging to the same hospital perform bone marrow punctures to collect the bone marrow specimens required for bone marrow examinations from April to November 2018.
The core of this violation of the Medical Service Act was the nurses' act of performing bone marrow punctures for bone marrow examinations.
A bone marrow puncture is an invasive examination in which a needle is inserted into the pelvic area to collect bone marrow blood and tissue.
The issue in the case was whether a bone marrow puncture is an absolute medical act that only a physician may perform, or an act of assisting with medical treatment that a nurse may perform.
Violation of the Medical Service Act, the Determinations of the Court of First Instance and the Appellate Court on Whether the Nurses' Bone Marrow Collection Was Lawful
🔗Violation of the Medical Service Act With respect to this matter, the court of first instance acquitted the foundation.
The court found that there was no provision specifying that a physician must personally perform a bone marrow puncture for a diagnostic bone marrow examination, and that it was insufficient to regard the performance of a medical act by nurses qualified as oncology specialist nurses, under the direction or delegation of a physician, as unlicensed medical practice.
The court hearing the appeal, however, determined that the nurses' performance of bone marrow punctures constituted a medical treatment act rather than assistance with medical treatment.
Its view was that, under the Medical Service Act, only a physician may perform a medical treatment act and a nurse may only assist, and it regarded the nurses' bone marrow collection in this case as unlicensed medical practice and a violation of the Medical Service Act.
The appellate court determined that, regardless of whether a physician was present on site, if a nurse personally performs a diagnostic bone marrow examination, this constitutes the medical treatment act itself rather than assistance with medical treatment, and it accordingly reversed the judgment of the first instance and imposed a fine of 20 million won for the violation of the Medical Service Act.
2. Violation of the Medical Service Act, the Supreme Court's Determination on Whether the Nurses' Bone Marrow Collection Was Lawful
The Supreme Court, which heard the final appeal, determined that, in this violation of the Medical Service Act, a bone marrow examination could not be regarded as a medical treatment act that only a physician may perform, and it decided to reverse and remand the lower judgment.
The Supreme Court held that, although the scope of acts of assisting with medical treatment that a nurse may perform does not include medical acts requiring a high level of knowledge and skill that only a physician may perform, a physician may, where the act is not a medical act itself, direct or delegate to a nurse acts of assisting with medical treatment that accompany the course of the medical act.
The Court also set out the gist of its judgment, stating that a physician cannot always be present on site to provide detailed guidance and supervision whenever a nurse performs an assisting act, and that in some cases general guidance and supervision without on-site presence may suffice.
The Supreme Court specified that the bone marrow examination in question is a medical act that may be performed by a nurse with the requisite competence and proficiency, and that nurses are medical personnel with the expertise and understanding required, having been trained in the basic anatomical knowledge necessary for bone marrow examinations as well as in the process of bone marrow examinations and the nursing care before and after such examinations.
3. Violation of the Medical Service Act, Daeryun's Strategy?
In medical acts relating to violations of the Medical Service Act, the persons who perform them also change rapidly with the times.
Because the types of medical acts are becoming more diverse and the very concept of a medical act may change with advances in medicine and developments in society, reasonable legal interpretation suited to each situation is necessary.
This case can be seen as one that, beyond the question of whether a nurse's bone marrow collection alone constitutes a violation of the Medical Service Act, set out a standard for distinguishing the ambiguous areas of work between physicians and nurses.
The 🔗attorneys handling medical matters at Daeryun Law Firm LLP offer clear answers regarding violations of the Medical Service Act through interpretation and review of the legal principles in line with such changes in the medical environment.
If you need prompt assistance with a matter involving a violation of the Medical Service Act that could lead to 🔗suspension of a physician's license or even revocation of a qualification, you are welcome to make a 🔗reservation for a consultation with a medical attorney.
