면허외 의료행위와 관련한 의료인의 형사법적 책임

Abstract

The Supreme Court held that a physical therapist's performance of Oriental physical therapy without supervision of doctor or dental doctor was unlicensed medical practice under the Medical Services Law, and the Oriental medicine doctor who had directed the physical therapist with such act was charged as an accomplice. However, under the current Medical Services Law, which differentiates between Western and Oriental medical practices, the Oriental physical therapy performed by the physical therapist was outside the duty of physical therapists; thus it should have been recognized as unlicensed medical practice under that respect. The current case led to confusion as to the boundaries of licensed medical practices, because the Supreme Court had failed to make clear determination on the medical practice performed by the physical therapist. With advancement of science and technology, the boundaries of medical practice among medical doctors, dental doctors, and Oriental medicine doctors, as well as the boundaries of medical practice and non-medical practice have blurred. Previous Supreme Court cases had interpreted medical practice broadly, which include illness treatment,prevention as well as activities harmful to public health. As such broad interpretation can hinder specialization and effectiveness, those areas with low or no public heath threats should be limited to medical practitioners with specialized knowledge and skills. Moreover, the areas that overlap among the medical practitioners should be determined as to whether they are within the boundaries of licensed areas in accordance with the purpose of the Medical Services Law, which is the advancement of citizens’ health.