포괄수가제와 관련하여 원외처방 의료기관의 약제비반환 의무 - 대법원 2009.11.26. 선고 2009두8786판결을 중심으로 -

Abstract

The verdict, the subject of study, with respect to the medical institutions which proscribed the medicine for discharge covered by Diagnosis Related Group System, for the outpatients; 1) acknowledged they received medical treatment benefit, but 2) regarded the applicable medical institution’s conduct of outpatient prescription, not violating the regulation of the pharmaceutical affairs law, regarding ‘separation of dispensary from medical practice’. Thus, it judged that the applicable medical institution’s conducts should not be regarded as the receipt by unjustified means, described in the clause 1, article 52 of the National Health Insurance Law, thus national health insurance corporation’s recapturization of medical care expenses from them was invalid. Since the implementation of ‘separation of dispensary from medical practice’, with respect to the recapturization of ordinary ‘outpatient prescription’ and ‘drug expenditures’, the principal who receives the medical treatment benefit is not the medical institution which prescribes for the outpatients, but the pharmacy. Thus, it is not possible for the National Health Insurance Corporation to recapture the medical treatment benefit from the medical institutions. However, the problem is that the medical institution which has done the outpatient prescriptions covered by Diagnosis Related Group System also received medical treatment benefit applicable to Diagnosis Related Group System from the National Health Insurance Corporation, so ‘drug expenditure’ can be regarded as unjustified benefit. Thus, the different problem solving approach is required in this case, unlike the ordinary case of excessive outpatient prescriptions. In this writing, it will be examined whether or not the National Health Insurance Corporation’s recapturization of the medical treatment benefit from the medical institutions, the plaintiff, was valid, according to the requirements in the clause 1, article 52 of the National Health Insurance Law. With respect to the cases and the issues of ordinary excessive outpatient prescriptions, they vary, depending on the recipient of the medical treatment benefit, so these two different cases will be compared for the review. The verdict, the subject of study, denied the medical institution’ receipt of the medical treatment benefit in an unjustified way, among the requirement in the clause 1, article 52 of the National Health Insurance Law, however, this writing will intensively examine the validity of this verdict, the subject of study, based on the purpose of the standards for the medical treatment benefit.