Appeals court suspends sentence on doctor fined for making nursing assistant order X-ray test

A doctor who was fined for violating the Medical Service Act by having a nursing assistant order x-rays for a radiologist has had his sentence suspended on appeal.

However, the appeals court made it clear that it was a medical practice that should be performed by a doctor, not an assisting practice.

The Changwon District Court, Criminal Division 3-3, recently suspended the conviction of a doctor, initialized as A, for violating the Medical Service Act. The court partially accepted the defendant’s argument that the original (first) trial court's verdict of a fine of 2 million won ($1,457) was unfair.

In 2023, Dr. A was indicted for ordering a nursing assistant to handle an X-ray at a hospital he ran. The prosecution believed Dr. A violated the Medical Service Act by delegating the task to a nursing assistant without guidance, even though he should have examined the patient and ordered the radiologist to take the radiographs.

However, Dr. A maintained that requiring new patients to undergo an X-ray before seeing a doctor constituted the nursing assistant’s practice of assisting in medical care. He argued that ordering a radiologist to take an X-ray could not be construed as a medical service only a doctor can perform.

The court disagreed.

Following the lower court's March 2024 finding of Mr. A guilty, the appeals court also found that he had violated the Medical Service Act.

The court said that ordering a radiologist to take an X-ray of a patient “constitutes a doctor's prescription or equivalent task as prescribed by the Medical Service Act.” It was also clear that examining the patient's painful area and questioning the patient before the X-ray was “an act of examination performed by the experience and functions based on medical expertise.”

“Medical practice, as defined by the Medical Service Act, means ‘the act of preventing or treating disease by examining, examining, prescribing, medicating, or performing surgical procedures based on experience and functions based on medical expertise’ or ‘other acts that may cause harm to health and hygiene if not performed by a medical practitioner,’” the appeals court said. “The nursing assistant arbitrarily examined the patient without a doctor's guidance and ordered the radiologist to take an X-ray, which is not medical assistance, but a medical practitioner.”

It also pointed out that the Enforcement Decree of the Act on Medical Technicians stipulates that medical technicians "shall perform their duties under the guidance of a doctor or dentist. The court also cited a 2012 Supreme Court ruling that stated that “an abstract risk is sufficient” for a health and hygiene hazard to exist and that “the absence of a concrete risk to the patient does not mean that there is no health and hygiene hazard.”

The court said, "The order to take an X-ray of a patient's painful area must be made by a doctor based on his or her medical expertise to determine the necessity of the X-ray and its location. Nevertheless, Mr. A routinely delegated this task to her nursing assistant."

However, it did accept the argument that the first sentence was too severe.

"Although the offense is not light, the act of ordering a radiologist to take a radiograph itself poses a relatively low risk to the patient's health, and the fact that he was trying to provide convenience to the patient by reducing the waiting time at the hospital must be considered," it said.

The court concluded that a fine of 2 million won was unreasonable, given that Mr. A was remorseful for the crime and considering the mitigating circumstances, including the motive, means, and results of the crime and the circumstances after the crime.

Accordingly, the court overturned the first-instance judgment that sentenced Mr. A to a fine and suspended his sentence.