Doctor who instructed nurse to perform extracorporeal shock wave therapy... Supreme Court confirms 1 million won fine

Medical Acts Beyond Simple Medical Assistance
'Violation of Medical Law' Nurse Fined 300,000 Won Confirmed

The fines for a doctor who instructed a nurse to perform extracorporeal shock wave therapy on a patient and the nurse who carried out the treatment under the doctor's instructions have been finalized.

They argued that the nurse was merely holding the treatment device like a stand according to the doctor's instructions and did not perform any medical acts prohibited under the Medical Service Act, but this was not accepted.

Supreme Court, Seocho-dong, Seoul.

According to the legal community on the 12th, the Supreme Court's 3rd Division (Presiding Justice No Jeong-hee) upheld the original court rulings that sentenced doctor A and nurse B, who were indicted for violating the Medical Service Act, to fines of 1 million won and 300,000 won respectively.

The court stated the reason for dismissing the appeal was that "there was no error in the lower court's judgment that violated the rules of logic and experience, exceeded the limits of free evaluation of evidence, misunderstood the legal principles regarding unlicensed medical acts prohibited under Article 27, Paragraph 1 of the Medical Service Act, or affected the judgment due to contradictory reasons."

Article 27 (Prohibition of Unlicensed Medical Acts, etc.) Paragraph 1 of the Medical Service Act states that "No one other than a medical professional may perform medical acts, and even medical professionals may not perform medical acts beyond their licensed scope." Unlicensed medical acts are punishable by imprisonment of up to five years or a fine of up to 50 million won under Article 87-2, Paragraph 2, Subparagraph 2 of the Medical Service Act.

Doctor A, the director of a hospital in Gunpo-si, Gyeonggi-do, intended to perform extracorporeal shock wave therapy on patient C, who visited on February 9, 2018, for shoulder rotator cuff inflammation. However, due to many waiting patients and the absence of a physical therapist, he instructed nurse B to perform the treatment.

Nurse B performed extracorporeal shock wave therapy on patient C a total of four times: on February 9, 19, 26, and March 5, 2018.

The prosecution indicted both individuals for violating the Medical Service Act.

In court, both argued that doctor A precisely specified the treatment area and the intensity of the device, and nurse B merely held the treatment device like a stand for several minutes, thus performing lawful medical assistance within the scope of nursing.

However, the first and second instance courts found that the acts violated the Medical Service Act and sentenced them to fines of 1 million won and 300,000 won respectively.

The second instance court first cited Supreme Court precedents regarding nursing assistance in medical treatment.

The Supreme Court previously ruled that "While a doctor may instruct or delegate a nurse to assist in medical treatment, it is not permissible to instruct or delegate a nurse to perform medical acts that only a doctor can perform. Therefore, even if a nurse performs such acts under the doctor's instruction or delegation, it constitutes unlicensed medical practice."

This ruling means that even if there is a doctor's instruction, having a nurse perform the medical act itself violates the Medical Service Act.

Additionally, the Supreme Court stated, "When a nurse assists in medical treatment, it is not always necessary for the doctor to be present on-site to supervise every single act. In some cases, general supervision without the doctor's presence at the assistance site may suffice. Whether the act qualifies as assistance depends on the type of act and must be determined individually by considering factors such as the objective characteristics of the act, potential risks, side effects or sequelae, the patient's condition at the time, and the nurse's qualifications and proficiency."

Based on this Supreme Court precedent, the second instance court judged that nurse B's actions were medical acts, not mere assistance.

The court gave two reasons.

First, the court noted that even though nurse B performed extracorporeal shock wave therapy, considering the number of times and intervals, the risk seemed minimal. However, the court stated, "Extracorporeal shock wave therapy may cause pain or skin irritation immediately after treatment, and excessive use or treatment on patients taking anticoagulants may cause hematoma, which qualifies as a medical act."

Second, the court cited the following points: contrary to the defendants' claim that doctor A specifically marked the treatment area on the patient's body, it appeared that doctor A only checked and marked the shoulder pain area in the consultation room and did not attend the treatment room; nurse B moved the device over a relatively wide area including the patient's neck, shoulder, and right back, using the device for about five minutes; although nurse B needed to adjust the treatment area and intensity based on the patient's reactions during treatment, doctor A gave no such instructions; rather, when patient C complained of pain in the armpit area, doctor A reportedly told the patient to ask nurse B to treat the armpit more, which suggests doctor A expected nurse B to adjust the treatment area independently. Based on these circumstances, the court concluded that "Although doctor A instructed nurse B on the treatment area and device intensity, considering the above, nurse B performed the medical act itself beyond mere medical assistance for extracorporeal shock wave therapy."

Both parties appealed, but the Supreme Court's judgment remained the same.

This content was produced with the assistance of AI translation services.