"The ruling punishing the doctor who tried to save the patient is problematic"

Published 02 Dec.2024 17:44(KST)

The medical vacuum caused by the collective resignation of residents has continued for nearly a year without finding a solution. In the medical community, there is an opinion that before the government increases the number of medical students, it should first address the issue of 'medical judiciary,' which causes doctors to avoid essential medical fields. There is criticism that doctors are leaving essential medical fields such as surgery and obstetrics and gynecology due to a trend in court rulings that impose prison sentences on doctors for medical accidents or require them to prove no fault in medical accidents. There are growing concerns that excessive criminal punishment of doctors will make it difficult to resolve the crisis in essential medical fields.

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On the occasion of its 74th anniversary, Law Times interviewed Lee Woo-yong, Director of the Cancer Hospital at Samsung Seoul Hospital, who currently serves as Vice President of the Korean Academy of Medical Sciences and Director of the Medical Appraisal Institute of the Korean Medical Association, about legal judgments surrounding medical accidents.

Below is a Q&A.

Since last year, issues surrounding the increase in medical school admissions have been continuously stirring controversy in the medical community. Is there any solution to resolve the conflict?

If there had been a solution, it wouldn't have dragged on this long. Either the government or the doctors need to make concessions or one side needs to yield, but it's not easy. There is no compromise at all. I tell people around me, "Don't get sick these days." Students are not in a position to listen to the stories of medical elders, and even if they try to talk, they don't listen. The government is also stubborn. Someone has to give in and both sides need to compromise step by step, but it's difficult. Ultimately, all the damage falls on the public.

If the conflict is not resolved by February next year, the situation in medical sites will be more severe than this year. Early March next year is the season when new residents enter. Large hospitals have professors, then fellows, and below them residents (interns and residents). After residents left the medical field, fellows remained to fill the medical vacuum, but their contracts will end early next year, and they will leave to find new jobs. The number of new fellows entering next year is expected to be much lower than this year. It is clear that the manpower shortage on site will worsen.

What do you think is the essence of the ongoing medical-government conflict that has lasted over 10 months? Some critical views say it is 'doctors pursuing their own interests.'

The essence of the problem is that the government pushed policies without discussion with the expert group and without feasibility. The government may have brought up the 'increase in medical school admissions' with good intentions, but the order of problem-solving was wrong. If the problem was 'revitalizing regional medical care and essential departments (such as surgery, emergency medicine, pediatrics),' then a plan to revitalize regional medical care and essential departments should have been made first, and then, 'since manpower is still insufficient, we will increase medical school admissions.' But the order was reversed. The medical community has advocated for decades for ways to revitalize essential departments, but the government did not actively respond and suddenly announced implementation, which made trust even lower.

In 1998, when the medical school quota was 2,027, 279 students chose surgery as their specialty. The current medical school quota is 3,100, an increase of 1,000 in total. However, nowadays, only about 130 graduates choose surgery. Although the total number of medical students increased, the number of those willing to enter essential departments has actually decreased.

Among those who want to work in essential medical fields, there is no one who aims to make a lot of money. They come to essential departments with pride in saving seriously ill patients, even if they don't earn much. However, essential departments have become 'departments that require a lot of effort but do not pay well.' So much so that there is a joke that 'essential departments = drainage departments.'

According to data from the Surgical Society, 40% of those who obtain surgical specialty certification work in dermatology, plastic surgery, or nursing hospitals. The problem is not a shortage of surgeons or pediatricians, but that they work in other departments. Regarding the medical-government conflict, some say doctors became doctors for money, but essential department doctors did not become doctors for money, and essential departments generally earn less than other departments.

Are the salaries in essential departments much lower than in other departments?

In university hospitals, essential department doctors and non-essential department doctors receive similar salaries. Korean hospitals operate at a loss the more doctors see critically ill patients. Therefore, essential department doctors are not compensated accordingly. The government has continuously suppressed fees for essential departments while neglecting non-essential department non-reimbursable treatments. Essential departments like surgery and obstetrics and gynecology have almost no non-reimbursable items. Essential departments, which handle emergency surgeries and many critically ill patients, work two to three times more than non-essential departments but earn less than one-third. Of course, essential department doctors earn more than general workers, but compared to other departments, their conditions are relatively poor.

There is criticism of 'pursuit of profit,' but those who have left the medical field or universities are residents and students. Whether they will become doctors, residents, dermatologists, or work in essential departments later is still unknown. Therefore, it is questionable whether blaming them for leaving because of money is appropriate. What is clear is that students and residents are hardly related to immediate profits.

Frontline doctors point to the 'medical judiciary' issue as more serious than the increase in medical school admissions. There is criticism that the shift in court rulings placing the burden of proof of negligence on doctors has contributed to the worsening shortage of manpower in essential medical fields (surgery, pediatrics, obstetrics and gynecology), which bear a heavy legal burden for medical accidents.

Recently, rulings stating 'the doctor has the burden of proof' have emerged, but the dominant view still holds patients responsible. The biggest problem with medical judiciary is 'reduced medical practice due to criminal punishment.' Doctors become defensive in treatment out of fear of criminal punishment and cannot do their best to save patients who could be saved.

The impact is greater when medical accidents escalate from civil to criminal cases. Who would intentionally kill a patient? Punishing doctors because a patient did not recover or died is problematic. The issue is that such medical disputes concentrate in essential departments with many critically ill patients.

Even in the same situation and surgery, some patients develop complications or their condition worsens. Doctors are not gods. Therefore, many choose non-essential departments where the risk of criminal disputes is lower rather than getting involved in medical disputes.

Doctors work without sleep, but if they make a slight mistake, they face punishment. Why would anyone want to be a doctor under such conditions? In the past, doctors said they worked for the reward of saving lives, but young doctors nowadays do not think that way. As a professor, I have no grounds to encourage students to continue being doctors. Among the causes of avoidance of essential departments, money and low fees are factors, but I believe medical litigation issues are bigger. For example, if an accident occurs during delivery, compensation can be 1 to 2 billion won. Doctors lose the money they earned over more than 10 years due to lawsuits.

Doctors who undergo lawsuits and investigations suffer trauma for years. Eventually, they practice defensively, and patients bear the loss. I perform many cancer surgeries; for example, if a large tumor recurs in a patient, and removing it offers a 20% chance of cure, would you try? In such situations, fear of lawsuits may prevent surgery. Unable to operate, doctors must resort to radiation or chemotherapy. The environment does not allow doctors to provide the best care. I believe criminal punishment harms doctors, patients who could be cured, and the nation as a whole.

Of course, I understand courts face difficulties in judgments. But unless it is truly intentional, doctors should not be punished or should be exempted by special laws. Otherwise, no one will want to take care of essential medical fields. Even I, who am close to retirement, get scared when difficult surgeries come up; how about young doctors?

A representative case is the neonatal death incident at Ewha Womans University Mokdong Hospital. Although the Supreme Court eventually acquitted the medical staff, they could do nothing during the three years of litigation. After this incident, applications for pediatrics dropped sharply.

Korea is an unprecedented country in criminally punishing doctors. For example, from 2013 to 2018, the UK had 4 cases where doctors were prosecuted and convicted for gross negligence manslaughter, but Korea had 670 convictions for professional negligence causing death or injury. The number of doctors in the UK is about twice that of Korea. In Germany, from 2013 to 2019, there were only 6 criminal punishments of doctors, about one per year.

I hope courts consider the enormous impact of their rulings on doctors' practice and medical finances. When a medical ruling is made, doctors must follow that precedent. For example, if a patient comes for appendectomy and blood tests and surgery are performed, but an accident occurs, and the court fines the doctor saying 'a CT scan before surgery would have been more accurate,' what happens? Doctors will unnecessarily perform CT scans even on appendicitis patients who do not need them, fearing punishment for not doing so. If 100,000 appendectomies are performed annually in Korea, that one ruling causes tens or hundreds of billions of won in CT costs. Each such ruling affects medical insurance finances by trillions of won, leading to problems where money cannot be properly spent where needed.

What specific aspects should investigative agencies or courts consider when handling medical cases?

People who tried to save patients should not be punished. If it is clear to anyone that the doctor was not negligent or intentional, exemption is necessary. The Korean Medical Association proposed a policy: like automobile liability insurance, create an insurance system that exempts doctors from criminal liability in medical cases except for five major gross negligence cases (such as proxy surgery, surgery under influence). However, cases of clear negligence or intentional acts should be severely punished. Also, doctors who repeatedly make mistakes should be autonomously disciplined by peers to suspend their licenses. For example, a surgeon suddenly opening the wrong area during thyroid surgery or rupturing the aorta unrelated to surgery causing patient death. Except for such cases, ambiguous cases should not be punished. Except for gross negligence, criminal punishment exemption is necessary for essential department doctors to treat difficult patients.

Some US states have enacted 'Apology Laws' that prevent expressions of regret or apology by doctors during patient interactions from being used as evidence of liability in medical lawsuits. This legal protection allows doctors to empathize with patients without legal disadvantage. Korea discussed introducing this law in 2018, but it was abandoned amid controversy. Is such legislation needed in Korea?

The purpose of the Apology Law is good, but I am not sure if it will be properly implemented. Doctors want to say "I am truly sorry," but in Korea, this might be exploited. Currently, if doctors apologize, it is used as evidence of fault. Doctors can apologize ethically but cannot because it may be grounds for punishment. Theoretically, the Apology Law should reduce lawsuits, but I am unsure if it will work like in the West.

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In a previous interview with a media outlet, you said, "60% of treatments performed in emergency rooms nationwide are handled by surgeons. If surgery collapses, 60% of emergency rooms nationwide collapse." What problems do emergency rooms in Korean medical care face?

This is not limited to emergency rooms. After emergency treatment in the ER, patients need to be transferred to intensive care units and hospitalized, but no one seems to consider that next step. The biggest problem of the so-called 'ER roundabout' is not the absence of doctors in the ER, but the decrease in essential department doctors making 'post-ER treatment' difficult. However, Korea only thinks about the ER itself in ER problems. Meanwhile, only emergency medicine doctors' salaries have increased. The ER overcrowding problem arises because there are no beds to transfer patients after ER treatment, so patients must stay in the ER. Moreover, hospitals receive penalties if ER overcrowding increases. Therefore, large hospitals temporarily close ERs to solve overcrowding. The government does not try to solve why overcrowding occurs but only imposes penalties, so hospitals have no choice. The ER is a gate, and actual treatment happens behind it, but this is overlooked, and only the ER is seen as the problem.

Concerns have been raised about the fairness of medical appraisals when medical accidents occur. The Supreme Court is promoting a medical appraisal control tower to expedite appraisal procedures and make appraisal fees realistic. What improvements should courts make to prevent delays or reliability issues in medical appraisals?

Recently, the Korean Medical Association Medical Appraisal Institute held a meeting with Kim Jung-joong, Chief Judge of Seoul Central District Court, regarding medical appraisals. The current problems are inconsistent appraisal results and an average appraisal period of about six months. It is difficult to find doctors to perform appraisals, and all materials and records are handled manually on paper in an 'analog way.' If materials are insufficient, they must be resent and rechecked repeatedly, causing more delays. I think creating an electronic system to store medical records and allow court access would help. Doctors performing appraisals could log into the program and view related materials electronically and write appraisal reports within the program, which would help reduce delays.

Also, the court, medical association, and government should establish a 'control tower' and increase the pool of medical appraisers. The state could consider educating appraisers and issuing certificates. Some countries allow retired doctors to work as honorary appraisers; Korea could actively introduce such a system.

Any other comments?

I hope courts understand that doctors and patients differ from legal codes and liability clauses. Patients are living, breathing people. I always tell residents, 'The patient you met 10 minutes ago is a completely different patient now.' They were alive 10 minutes ago, but 10 minutes later, their condition may change or they may not survive. Considering this, I hope courts judge not only by outcomes but also consider the circumstances during treatment. I hope each judge considers the impact of their rulings on the medical community and society. Unfair rulings against doctors can later cause many patients to suffer unfairly.