'Opposition to Medical Student Increase' Collective Resignation of Residents: 4 Legal Issues...

On the 23rd, the government issued a ‘work commencement order’ to about 6,000 residents who were confirmed to have left their workplaces among the residents who collectively resigned in opposition to the increase in medical school students. The government plans to sequentially take additional measures such as issuing a compulsory enforcement order, suspending medical licenses, and filing charges if the residents do not return to the field despite the work commencement order. This is not the first time that doctors have taken collective action such as strikes or that the government has issued a work commencement order.

[Image source=Yonhap News]

However, the current government is emphasizing a ‘strict response’ policy more than ever, and many doctors may face trial in large numbers. A legal expert said, “We tried to seek advice and litigation from major law firms in preparation for possible license suspensions or cancellations for residents, but I understand that most law firms have expressed reluctance.”

There are four main legal issues.

[Image source=Beomryul Newspaper]

Whether the violation of the Medical Service Act constitutes a ‘justifiable reason’

For the collective resignation of residents to be considered a violation of the Medical Service Act, it is crucial whether it can be seen as a ‘justifiable reason’ as stipulated by law.

According to Article 15, Paragraph 1 of the Medical Service Act, medical personnel or medical institution operators cannot refuse requests for treatment or early delivery without a ‘justifiable reason.’

A lawyer in Seocho-dong said, “Considering the common goal of opposing the increase in doctors and the nationwide collective action, there is a possibility that ‘sympathy strikes’ or ‘collective resignations’ could be interpreted as refusal of treatment.”

On the other hand, another lawyer said, “A justifiable reason means a level that is reasonably understandable, such as being ill or having a serious personal reason. It is questionable whether voluntary resignation can be seen as refusal of treatment.”

Applicability of the crime of professional negligence resulting in death or injury

If the resignation is not for a justifiable reason, criminal liability may arise if medical accidents occur due to delayed or inadequate treatment.

In such cases, the victim may sue the doctor and hospital, and the prosecution can prove the causal relationship between the collective resignation and the medical accident and indict for professional negligence resulting in death or injury.

A lawyer from a law firm said, “It is possible to indict for professional negligence resulting in death or injury, but realistically, it seems difficult to obtain a guilty verdict,” and predicted, “It is expected to be used more as a means to pressure doctors rather than actual criminal punishment.”

Liability for damages

Civil lawsuits may follow.

The court has ruled that hospitals must compensate patients and families who suffered sequelae due to inadequate treatment caused by doctors’ strikes.

In 2005, the Daegu District Court partially ruled in favor of A, who suffered sequelae such as speech impairment and epilepsy due to delayed treatment caused by a medical strike, and A’s family in a damages claim lawsuit against B Hospital in Pohang, Gyeongbuk, ordering the hospital to pay 550 million won. The court stated, “The hospital failed to provide emergency treatment through specific examinations when A arrived, and negligently transferred A to another hospital about two hours away without accompanying a doctor, causing a missed surgery opportunity.”

Park Ho-gyun (50, Judicial Research and Training Institute class 35), a lawyer and representative of the law firm Hippocrates, said, “If the law is strictly applied, doctors who led the collective action are likely to bear legal responsibility.” However, a lawyer who is a former chief judge said, “Even if residents, who play a supporting role in surgeries, collectively resign, there are specialists in the hospital, so it would be practically difficult to prove that damages occurred due to the absence of residents.”

Realization of administrative sanctions

Professor Kwon Yong-jin of the Public Medical Service Center at Seoul National University Hospital stated on social media on the 23rd in a post starting with ‘To the residents,’ that “As the government raised the health and medical disaster alert level to the highest crisis level, ‘severe,’ at 8 a.m. on the 23rd, administrative sanctions may become a reality.” Professor Kwon expressed concern, saying, “The fact that resignation letters were submitted and the residents immediately left the hospital without following normal procedures could be an important issue,” and “Since the resignation letters have not been accepted, this situation may correspond to ‘unauthorized absence from the workplace.’”

Administrative sanctions remain on record and follow the doctor until they quit the medical profession. It is said that if a doctor with a domestic medical license seeks employment overseas, having ‘administrative sanctions under the Medical Service Act’ on their documents can be a fatal restriction.

Reporter Lee Soon-gyu, Legal Newspaper

※This article is based on content supplied by Law Times.

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