The Supreme Court, overturning existing precedents, has ruled that Oriental doctors can use diagnostic medical devices, such as ultrasound devices, causing repercussions.

On Thursday, the Supreme Court overturned en banc the original ruling and acquitted an Oriental doctor charged with violating the Medical Service Act by using an ultrasound diagnostic device. The first and second trials judged that the doctor had committed medical practices outside the scope of an oriental doctor's license and fined him 800,000 won ($625).

However, the top court found that the Oriental doctor’s use of an ultrasonic device was not a violation of the medical law, saying, “We should judge reasonably according to social norms.” According to the new criteria, oriental doctors can use only diagnostic medical devices.

Another reason for the acquittal was that there was no provision in the law prohibiting Oriental doctors from using ultrasound diagnostic devices.

The Oriental medical practitioner was indicted with violating Clause 1 Article 27 of the Medical Service Act for treating patients using supersonic diagnosis devices from March 2010 to June 2012. The clause stipulates that medical personnel cannot engage in medical activities outside the scope of their licenses.

However, Chief Justice Kim Myung-soo said it is possible for Oriental doctors to use medical devices for diagnosis in an en banc ruling of the Supreme Court in Seocho-gu, Seoul, on Thursday afternoon.

‘There is no rule prohibiting the use of ultrasound devices by Oriental doctors’

The top court emphasized that to judge whether Oriental doctors’ use of diagnosis devices are medical acts beyond their licenses, the court should comprehensively consider the following factors: whether the related laws have regulations that ban oriental doctors’ use of diagnostic devices; whether there is the possibility of causing damages exceeding allowable levels if oriental doctors use such devices; and it is evident that oriental doctors’ use of diagnostic devices is irrelevant to acts applied based on oriental medicine’s medical practices.

The highest court said, “We should judge reasonably according to social norms,” considering the “new criteria for judgment.”

“Seen from such new judgment standards, it does not constitute medical practice other than permitted for Oriental medicine doctors if they photograph the inside of patients with ultrasonic devices and use them as the supplementary method of diagnosis,” it said.

However, unlike ultrasonic devices, Oriental doctors cannot use X-ray, computer tomography (CT, and magnetic resonance imaging (MRI) devices, in accordance with the Rules for Safety Management of Radiation Generating Devices for Diagnosis and the Rules for Installation and Operation of Special Medical Equipment.

‘Oriental medical schools have supplemented and strengthened medical device education for diagnosis’

Regarding the Constitutional Court's decision that the use of ultrasound diagnostic devices by Oriental doctors is a medical practice outside the scope of the license, the Supreme Court said, “Compared to that time, the recent curriculum related to the use of medical devices for diagnosis at oriental medical schools in Korea has been continuously supplemented and strengthened.”

It went on to say, “Allowing Oriental doctors to use ultrasound diagnostic devices not only contributes to the protection and promotion of public health prescribed in Article 1 of the Medical Service Act but also guarantees the public's right to choose medical services based on Article 10 of the Constitution.”

The top court noted that modern diagnosis devices have been invented and manufactured through science and technology. Therefore, it isn't easy to regard them as something to be exclusively used by Western doctors.

“We also cannot think that Oriental doctors’ use of ultrasonic devices has been proven irrelevant to acts applicable based on oriental medicine’s practices,” it added.

However, the top court also made it clear the ruling did not allow the use of all modern medical devices by Oriental doctors.

“This ruling does not explicitly prohibit the use of Oriental medicine doctors by related laws, such as the Medical Service Act, and is limited to diagnostic devices,” the Supreme Court said. “It never intends to allow oriental doctors to use all modern medical devices regardless of their degree of invasion.”

‘There are health and hygiene concerns, such as mis-diagnosis’

There was also a minority opinion that Oriental doctors should not be allowed to use ultrasound diagnostic devices.

“If Oriental doctors use ultrasonic devices in Western medicine’s way, it is contrary to the dual medical system and constitutes an unlicensed medical practice under the Medical Service Act," two of the nine justices said.

They pointed out that considering the educational level of Oriental medical schools, using these modern devices by poorly trained oriental doctors might cause misdiagnosis and other health and hygiene damages.

“The ruling is significant as it presented a new standard for determining whether an Oriental medical doctor's use of diagnostic medical devices constitutes unlicensed medical practice,” the Supreme Court’s Public Information Office said. “This ruling should not be extended to the effect of denying the dual medical system stipulated in the Medical Service Act.”

It is also not intended that the ultrasound examination fee of Oriental medical clinics will be covered by health insurance immediately, the office added.

Oriental doctors welcome ruling, call for government to take follow-up steps

The Association of Korean Medicine, a group of Oriental doctors, issued a welcoming statement on the Supreme Court ruling and called for the government to come up with follow-up steps.

“We welcome the Supreme Court’s ruling that it is legal for Oriental doctors to treat patients using ultrasonic devices,” the association said. “The top court’s ruling has provided a beginning to free oriental doctors from the shackle of limited use of modern diagnosis devices and comes as a turning point in guaranteeing the public’s choice of treatment options.”

It then requested the government to work out legal and institutional devices to9 allow Oriental doctors to use modern diagnosis devices to promote public health freely.

“We expect the health authorities to come up with swift and reasonable follow-up measures without watching the face of a specific interest group,” the association said indirectly to the Korean Medical Association.

Western doctors puzzled by the ruling, putting forth criticisms of the top court

After the Supreme Court ruled that the use of ultrasound diagnostic devices by Oriental doctors was not illegal, overturning existing precedents, the medical community responded that it was incomprehensible.

However, they seemed to be unable to find a suitable countermeasure. On Friday, the Korean Medical Association (KMA) struggled to come up with countermeasures, paying keen attention to the impact of the Supreme Court ruling. KMA held an emergency meeting with the Special Committee on Oriental Medicine Countermeasures right after the Supreme Court ruling but failed to work out a countermeasure to “reverse the situation.” Instead, it focused on actively promoting the problems of the Supreme Court ruling.

“The ruling shakes the foundation of the medical license system to the root. It is obvious that unlicensed medical practices will become widespread and cause serious harm to people`s lives and health,” KMA said in a statement. “We can't help but be shocked that the ultrasound diagnosis device was judged as a medical device that Oriental doctors could use."