사무장병원의 개설과 부당청구에 대한 규제에 관한 소고

Abstract

So called ‘non-medical practitioner hospitals’ that are medical institutions which had been funded and actually owned by a non-medical practitioner, who operates the hospital by employing medical practitioners are prohibited by the Medical Services Act. Nevertheless, ‘non-medical practitioner hospitals’ which take advantage of the difficulty medical practitioners are facing when starting their own medical institution due to substantial start-up investment cost required and the government benefits in various forms of medical care benefits and subsidy have been proliferated. However, an issue arises as to whether a licensed medical practitioner who has been employed by such a non-medical practitioner institution can be penalized as fraud and collect as unjust enrichment in her normal medical practice, when receiving medical care benefits from the National Health Insurance Services that is neither falsity nor excessive charge. The Supreme Court 2015. 7. 9. Decided 2014 Do 11843 Case acknowledges the crime of fraud, but as to the medical service, because it had been performed after conclusion of medical contract with medical practitioner and the health care benefit is a compensation for such medical service that had been paid by the National Health Insurance Services on behalf of the patient, it could not be considered as an act of deception. In addition, the Constitutional Court 2015. 7. 30. Decided 2014 Hunba 298, 357, 2015 Hunba 20 decisions, as to the above medical care benefit collection claim, the National Health Insurance Act Article 57 that considered such action as ‘deceitful or other unjustified action‘ was found to be consitutional. This study finds that as the Court had concluded, Article 57 is not in contrary with the principle of clarity nor excessive prohibition principle. Moreover, Article 57 only permits lawfully established medical institutions under the Medical Services Act to claim medical care benefits. Despite the fact that a medical practitioner had provided normal medical service, such service constitutes ’deceitful or other unjustified action’ that results in collection claim of unjust enrichment. A legislation that imposes criminal liability and immunity for employed medical practitioners to induce reporting of unjust medical care benefit claim by such non-medical practitioner hospitals is needed.