경제적 비용에 관한 정보 제공 의무에 관한 고찰

Abstract

The current medical law stipulates that if a medical institution intends to provide non-benefit medical treatment, a medical institution worker must explain the non-benefit medical treatment cost to the patient in advance prior to its implementation. This is a step further from the existing law of self-determination of patients for invasive medical treatment, which is understood to be a provision to further ensure patients' treatment options linked to economic reasons in the area of 'legal non-benefit' medical expenses that are not covered by the National Health Insurance area. In this regard, Article 45 (1) of the Medical Law does not delegate explanations because it is said that non-benefit medical expenses should be notified as prescribed by Ordinance of the Ministry of Health and Welfare, but Article 42-3 (2) of the subordinate statutes delegated by the Medical Law stipulates that patients explain non-benefit medical expenses in advance, which is beyond the delegation of the parent law, and there was a constitutional petition trial based on the claim that it violates the freedom of the head of a medical institution to perform his or her job against the principle of legal reservation. In response, the Constitutional Court recently determined that the subject provisions did not infringe on the freedom of the head of a medical institution to choose a job through the decision of the All Court of the Constitutional Court sentenced on February 23, 2023. The decision on the subject is of great importance in that it declared the importance of the applicant's economic circumstances in the exercise of the right to make medical decisions for non-payment treatment. However, despite its legal validity, costs may not be explained in accordance with the changed laws and regulations, or disputes related to the patient's disagreement may arise. As a result, a review of areas that have not yet been discussed, such as whether there is a clear procedure for explaining non-benefit costs for each medical institution, the method of expressing intention when a patient refuses treatment after receiving cost information, the relationship between the obligation to explain and establish limits, and the access of the national standard computer system to prevent omission of cost explanations, can be used as a reference for preventing medical disputes and revising laws in the future. In this paper, we will examine the decision and its provisions in detail, and suggest ways to improve laws and regulations appropriate to the reality of Korea's medical conditions, people's legal sentiment, and medical law in consideration of foreign similar systems, to prevent the legislative purpose or the law of the Constitutional Court's decision from fading and to help protect patients' rights and interests. In addition, we would like to look at ways to avoid the expansion of the burden on medical personnel in the process of complying with the provisions and to help alleviate and resolve disputes related to the obligation to explain non-benefit medical expenses.