Even in the United States, a "litigation paradise," Americans take caution in medical suits. Doctors are criminally prosecuted for malpractice unless "willfulness" is proven. In civil cases, too, many states have statutory caps on damages to prevent doctors from being overburdened.

The U.S. judicial system distinguishes between intentional harm and harm caused by mistake or accident. According to State Codes in Indiana and other states, criminal liability for medical malpractice requires that a doctor be proven to have acted either "intentionally," "knowingly," or "recklessly.”

"The U.S. law applies the concept of Mens Rea (criminal intent) in criminal cases," says Wilson Kehoe Winingham (WKW), a U.S. law firm. "If a doctor makes a mistake that worsens a patient's condition while performing his or her duties, it is an ordinary act of negligence without criminal intent. The doctor may be held liable for malpractice but will not be charged with a crime."

Criminal malpractice is when a healthcare provider intentionally, knowingly, or recklessly departs from the standard of care and commits an act that harms a patient in some way, WKW explained. If the doctor is negligent but did not intend to cause harm, the victim, the patient, files a civil lawsuit to recover damages, it added.

As a result, it is extremely rare for doctors to face criminal punishment in America. That also explains why Korean doctors operating in the U.S. agree that "no other country criminalizes doctors for medical malpractice as easily as Korea."

"Criminal prosecution of doctors is not common in the U.S. To prove criminal liability, intent must be demonstrated,” said Dr. Kang Hyun-seok, a professor of hematology-oncology at the University of California, San Francisco (UCSF) School of Medicine, in an interview with Korea Biomedical Review. “You can argue criminal negligence for practicing medicine recklessly, but that's also not easy to prove."

However, if doctors accidentally inject (prescribe) a lethal dose of a drug or miss a very clear diagnosis, there is a possibility of criminal charges. For example, after U.S. pop star Michael Jackson died of an anesthetic overdose, his physician, Conrad Murray, was charged with involuntary manslaughter and ultimately sentenced to four years in prison.

One of the crimes that can result in criminal penalties and even license revocation is insurance fraud.

"One of the things considered a felony in the U.S. is insurance fraud," Kang said. "If physicians commit insurance fraud against Medicare or an insurer by, for instance, falsifying medical records and billing for procedures they didn't perform, they're guilty of a felony and usually lose their license."

Other malpractice cases, however, are so rare that the filing of such cases could be news.

"In the U.S., laws vary from state to state, but in general, it is very difficult for malpractice to result in a criminal case," said Cho Do-yeon, M.D., professor of otolaryngology at the University of Alabama at Birmingham (UAB). "To treat it as a criminal case means that you have committed a serious crime that should be isolated from society. In the U.S., obstetrics and gynecology is one of the most litigious specialties, but there are very few criminal cases. The mere fact that a criminal case has been filed is newsworthy."

Instead, there are many civil lawsuits. Medical malpractice cases go "civil," not criminal, which is why the U.S. has such an elaborate medical malpractice insurance system. All hospitals carry malpractice insurance, as do private practitioners. Premiums vary by scope of practice, specialty, and location. In particular, if a medical accident occurs while practicing in an area other than their specialty, the damages will increase. In the worst-case scenario, they may not be able to get insurance at all.

"Doctors affiliated with hospitals are responsible for medical accidents, and the hospital pays the insurance premium,” Professor Kang said. "In the U.S., there are no restrictions on what doctors can do as long as they have a medical license. However, doctors don't practice outside of their specialty because the amount of compensation they must pay in the event of a medical accident differs. It can make insurance more expensive or even uninsurable."

In the U.S., "punitive damage reimbursements" can run into the tens of billions of won. That's a lot of money for a doctor. In some cases, states have set damages caps.

In 2020, 29 of the 50 U.S. states have caps on medical malpractice damages, according to a study by Peter DePaolis, a lawyer with the U.S. law firm Koonz McKenney Johnson & DePaolis LLP. Damage caps vary by state.

Colorado has an aggregate cap of $1 million (about 1.35 billion won), with court discretion. Non-economic damages are capped at $300,000. In California, non-economic damages are capped at $250,000.

On the other hand, other states have capped damages and then struck them down as unconstitutional. Alabama had a $400,000 cap on non-economic damages but declared it unconstitutional in 2003. Florida also had a cap of up to $1 million for serious injuries but repealed it in June 2017 after it was ruled unconstitutional.

"In states without caps, there have been verdicts calling for 40 billion won in compensation," Professor Cho said. "That's why hospitals and doctors in the U.S. have 100 percent medical liability insurance. They also specify the portion of damages to be borne in their labor contracts."

Medical records are also thoroughly managed in case of civil lawsuits due to medical accidents.

"Who opened the medical record, who modified it, and when are all recorded," Cho said. “In university hospitals, the medical records are 100 percent computerized, and the examination time is automatically recorded. Above all, even if there is a mistake during medical treatment, it is not a problem if the power supply and other post-treatment measures are taken properly.”

In the U.S., plastic surgery is one of the most litigious specialties, with many lawsuits and complaints from patients, according to Cho. Therefore, some doctors avoid plastic surgery.

"Specialties that do a lot of high-risk surgery or see a lot of critically ill patients, such as surgery and cardiothoracic surgery, are compensated accordingly. In the U.S., head and neck surgery is the number one reason doctors choose to specialize in ENT,” he said.

In the current situation in Korea, increasing the number of medical school students is unlikely to lead to an influx of doctors into “essential but high-risk medical fields,” Cho added.