|Kim Sun-Wook, esq. and Kim Young-Jun, esq.|
Although the respective systems related to health and medical service in different countries may appear to have similar characteristics, each country has adopted a slightly deviated system from others differentiated by its own history and tradition. In general, the systems related to health and medical service in the world usually consist of three components; i.e. i) ‘healthcare provider or medical person’ (this term ‘medical person’ is related to an issue of who is legally eligible for performing medical service), ii) ‘medical service’ (this term ‘medical service’ is related to an issue of who is entitled to engage in a business with medical service) and iii) ‘medical fee’ (this term ‘medical fee’ is related to an issue of how to determine the fee in consideration of medical service rendered). Accordingly, one may be able to truly understand to some extent the system related to health and medical service in a country upon examining the above three components.
The system related to health and medical service employed in the Republic of Korea (“Korea”) has earned recognition throughout the world, thanks to not only Korea being a popular medical tourism designation attracting more than 300,000 foreign patients annually (based on 2015 statistics) but also to her unique National Health Insurance System highly praised by Mr. Barack Obama, the former President of the United States of America.
Nevertheless, it may not be easy for a foreign invested company(s) conducting business in Korea to truly and correctly understand this system related to health and medical service due to a number of distinct features thereof. Under the circumstances, the aforementioned authors through this article desire to render assistance to those foreign invested companies interested in understanding the system related to health and medical service of Korea by supplementing explanations thereon in an easy to understand manner.
In this regard, we will provide readers with a series of explanations that introduce relevant laws and regulations as well as notable case rulings rendered by the Korean courts related to the above three components constituting the system related to health and medical service of Korea. For the first series, we hereby provide readers with relevant explanations on the ‘medical person’ within the system related to health and medical service of Korea.
2. Medical Person (Healthcare provider) in Korea
a. Regulation for Granting a Nationally Recognized License to Medical Person
In Korea, a license for a medical person is granted by the Minister of Health and Welfare. A person who has graduated from an accredited university or college and thereafter who has passed the relevant national examination for medical doctors conducted by the Minister of Health and Welfare without being subject to any grounds for disqualification as prescribed in the Medical Service Act is granted a license to practice by the Minister of Health and Welfare.
It may be the distinct characteristic that any medical person immediately after being granted a license is eligible for performing medical service in Korea. The national examination for medical specialists is also conducted by the Minister of Health and Welfare. Since the license has been granted by the Korean Government, a suspension or cancellation of said license shall be made by the Minister of Health and Welfare in a form of an administrative disposition.
b. Recognition of a Foreign License
A license to be given to a foreign national is divided into a permanent license or a temporary license. A permanent license means the same type of a license given to a Korean medical person. However, two conditions must be met; that is, i) he or she is first required to hold a license in his or her jurisdiction duly recognized by the Minister of Health and Welfare (For reference, the Minister of Health and Welfare has not recognized a Chinese medical license to date.) and ii) moreover, even any foreign national holding a license recognized by the Korean government is still required to pass the national examination for medical doctors in the Korean language conducted by the Minister of Health and Welfare.
A temporary license may be issued to a foreign medical person eligible for practicing medical service less than one year in Korea by satisfying two conditions in advance; i.e. his or her completion of 3-month span training prior to practicing by such foreign medical person and the subsequent approval by the Ministry of Health and Welfare. Even at the time of performing any medical service, such foreign medical person needs to obtain prior consent from a patient(s), and he or she is always required to accompany a Korean supervising doctor(s). Such one-year temporary license may be extended one time only for an additional one year. As an exception, a foreign license may be relatively freely recognized in any medical institution solely designated for foreign patients located in Jeju Island or an economic free trade zone in Korea.
c. Classification of Medical Person
In the Medical Service Act, Korea regulates a ‘medical person’ to refer to a medical doctor, a dentist, an oriental medical doctor, a midwife or a nurse. In addition, there are assistant nurse(s) rendering assistant service to a nurse or doctor as well as medical technicians such as radiology technologists, dental hygienists, physical therapists. One of the distinct features is Korea’s acknowledgment of an oriental medical doctor as a medical person in the Medical Service Act. Since an oriental medical doctor practices Korean traditional medical service, he or she is also eligible for practicing the broad scope of medical services just like a medical doctor. Nevertheless, any surgery not being taught in the medical academic program is deemed an act out of the scope of the licensed medical practice and thus is penalized as an unlicensed medical practice.
d. Dispute over Scope of License among Medical Persons
There exists a dispute related to the scope of a license among medical persons, for instance, over some plastic surgeries performed by a dentist, a laser treatment by an oriental medical doctor or injection of Botox by a dentist. In the event of performing medical practice beyond the scope of the license granted, such medical practice is deemed an unlicensed medical practice subject not only to a criminal sanction but also to an administrative disposition leading to, for instance, suspension of the license, as a result of which the scope of the license granted to a medical person is significantly important.
However, the Medical Service Act does not provide for the scope of the license granted to a medical person in a clear, accurate and concise manner creating much controversy and confusion. For instance, there is one notable precedent rendered by the Korean Supreme Court in 2016 holding that injection of Botox by a dentist would be within the scope of the license granted to such dentist. After this ruling, medical doctors have been vigorously protesting against the judgment of the Korean Supreme Court.
As to an issue of whether an oriental medical doctor may be eligible for a laser treatment, lower courts found in favor of the oriental medical doctor while the Korean Supreme Court eventually ruled otherwise. Although some countries in the world have adopted the ‘paramedic system’ to deal with such beauty treatment, Korea is the only country where only medical doctors are permitted to practice such beauty treatment without adopting a separate ‘paramedic system’. For instance, the Korean court ruled that only medical doctors are permitted to practice tattoo and/or semi-permanent make-up.
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