의료인의 지시에 의한 비의료인 또는 의료인의 무면허의료행위에 대한 형사법적 문제점에 관한 소고- 우리나라 판례의 태도를 중심으로 -

Abstract

In a recent incident in Busan, an orthopedic surgeon had ordered a medical device salesperson to perform a surrogate surgery on a patient and the surgery resulted a cerebral death for the patient. Similar surrogate surgeries have been found to occur in the National Medical Center or military hospitals. These fact findings cause anxiety on the public and distrust of medical personnel and medical institutions. Therefore, in case of medical doctors who order unlicensed non-medical personnel, such as a medical device sales person, or medical personnel, such as a nurse, or a nursing assistant, who cannot perform medical treatment independently, to perform or collude to perform unlicensed medical practice, it is necessary to examine how to grasp the relationship between them. In this paper, we examine the significance and types of the unlicensed medical treatments in Article 27 (1) of the Medical Law. Then we categorize unlicensed medical treatment by unlicensed non-medical personnel and unlicensed medical treatment by medical personnel such as a nurse or a nursing assistant and examine the attitudes of criminal cases by the Korean courts. We will also examine the differences between the two types and how it is appropriate to make criminal legal interpretation.