임의비급여 금지의 문제점과 그 해결방안 - 대법원 2010두27639,2010두27646 전원합의체 판결과그 이후의 판결 동향을 중심으로

Abstract

Supreme Court Full Bench Decision associated with discretionary not covered service delivered on June 18th 2012 is significant, because it presents the solution of pros and cons debate whether discretionary not covered service is allowed or not and which has caused fierce controversy in the country as well as lower courts by acknowledging that there is no system to check whether discretionary not covered service is accepted, that it is adequate for medical charge and that discretionary not covered service is exceptionally allowed only with agreement of patients with consideration of the problem of decision whether or not it is allowed based on the medical adequacy according to lower courts. However, majority of above court full bench decision is that discretionary not covered service should be acknowledged even according to interpretation of current laws because it is not reasonable to make a decision in which discretionary not covered service is not allowed according to interpretation of National Health Insurance Act even on the basis of limitation of principle of social nation, interpretation of current laws and review of comparative laws. However, in order to avoid using discretionary not covered service as the excuse for excessive care or excessive costs collection for the patients, it is reasonable to specify certain conditions and procedures for implementation in National Health Insurance Act or the Enforcement Decree. Before such legislative improvements are made, utilization of existing systems is actively encouraged to use if existing system can be utilized. If it is not available in a certain area, it can be judged by utilizing exceptional allowable conditions acknowledged by Supreme Court. The decision should be focused on the case in which medical adequacy is recognized. It is reasonable to make a decision as judgment to determine whether the willingness of the parties is included in the consent requirements.