Oriental medicine practitioner found guilty for 7 years of negligent breast cancer care

An oriental medicine practitioner who continued to perform only acupuncture and moxibustion treatments for seven years despite knowing a regular patient might have breast cancer was found guilty of negligent injury and ordered to pay partial civil damages.

The defendant cited the “limitations of oriental medicine” that prevent diagnostic tests like ultrasounds, but was unable to avoid responsibility.

In 2012, the oriental medicine practitioner, identified as Dr. A, heard one of his regular patients, identified as Ms. B, mention a “lump in her right breast.” Upon palpation, he confirmed a breast neoplasm.

Dr. A explained it was a blood circulation issue and continued to provide moxibustion and acupuncture treatments, along with prescribing herbal medicine, for around seven years until July 2019. During this period, Ms. B's condition deteriorated, leading to pain and bleeding at the affected site. By around 2018, the breast had lost its shape. In August 2019, Ms. B visited the emergency room of a local university hospital due to breathing difficulties and was diagnosed with stage 4 breast cancer. At that time, the tumor had metastasized to the lungs, liver, pleura, and bones.

Prosecutors charged Dr. A with professional negligence causing injury, concluding he had neglected his duty of care and caused harm to Ms. B.

“Dr. A, as a traditional Korean medicine practitioner, lacked specialized knowledge regarding breast cancer and did not have the necessary diagnostic equipment at his clinic to objectively determine the nature of the neoplasm in Ms. B's breast,” the prosecution said. “Dr. A had a professional duty of care to promptly take measures to ensure the patient's health and life were not threatened, such as informing the patient of a presumptive diagnosis regarding the neoplasm's status based on the course of treatment and referring her to another medical institution for diagnosis.”

However, Dr. A judged it to be a ‘blood circulation problem’ and “did not recommend that she undergo blood/tissue pathology tests or imaging diagnosis at another medical institution. From the time the neoplasm was identified until July 2019 (before Ms. B visited the university hospital emergency room), he only performed acupuncture and moxibustion treatments. This negligence allowed the tumor to metastasize to the patient's lungs, liver, pleura, bone, ankle, and back,” according to the prosecution.

Dr. A's side countered that he did not violate his professional duty of care. They argued that he “only performed medical acts permitted for an oriental medicine practitioner at the time.” Even if he had violated his duty of care, they claimed there was no substantial causal relationship with Ms. B's injury. However, during the investigative agency's inquiry, Dr. A stated that upon initial palpation, he “suspected (Ms. B's symptoms) might be breast cancer.”

Continued acupuncture and moxibustion despite recognizing the possibility of breast cancer is guilty of negligent injury

In May 2021, the Seongnam Branch of the Suwon District Court, presiding over this criminal trial, sentenced Dr. A to six months in prison, suspended for two years, for professional negligence causing injury. The court found that he had neglected his duty of care as an oriental medicine practitioner and that there was a substantial causal relationship between Dr. A's negligence and Ms. B's injury.

“Even though he could not directly perform procedures like breast ultrasounds or biopsies beyond oriental medicine treatments, Dr. A, as an oriental medicine practitioner, had a professional duty of care to take prompt action to prevent danger to the patient's life and health.”

Ms. B never heard any suggestion to seek treatment at another hospital or that it might be breast cancer. Instead, Dr. A told her, “Don't worry, it will go away with acupuncture and moxibustion treatment.” Even at the final visit, he only said, “I'll finish your treatment and let you go on a trip with your siblings.” Four days later, Ms. B went to a university hospital emergency room and was diagnosed with breast cancer.

The court ruled that treating a patient in such a clearly suspicious state for breast cancer for seven years, while being aware of the possibility of breast cancer yet failing to inform her or recommend treatment at another institution, constituted a breach of professional duty of care as an oriental medicine practitioner.

The court stated, “Had Dr. A informed her early, the breast cancer would have been detected, and Ms. B would not have suffered the injury of stage 4 breast cancer due to metastasis.” It found Dr. A guilty and sentenced him to six months in prison, the sentence being suspended for two years. The court considered that, despite Dr. A's negligence, the patient also had “negligence in relying solely on the oriental medicine doctor and failing to take basic measures like health screenings.”

The suspended prison sentence for Dr. A became final as neither party appealed.

‘Limitations of oriental medicine do not diminish the responsibility of an oriental medicine practitioner’

Subsequently, in a recent civil trial, a ruling ordered Dr. A to pay 20 million won ($14,170) in compensation for pain and suffering plus late interest. No other liability for damages was recognized.

The civil court stated that Dr. A's treatment fell within medical practices permitted for oriental medicine practitioners. It added that based solely on the evidence submitted by the patient, it is impossible to determine what other appropriate oriental medicine treatments Dr. A should have performed to improve the patient's condition. It concluded that it was difficult to view the acupuncture and moxibustion treatments themselves as causing the adverse outcome of stage 4 breast cancer, stating there was “no reason to find medical negligence in the treatment.”

However, the court accepted the claim that the duty to transfer the patient and the duty to explain were breached.

“By around 2018 (when the breast shape disappeared), it became impossible to adequately treat Ms. B's symptoms, thus creating a duty of care to promptly arrange a transfer,” the civil court ruled. “Had the doctor accurately explained the limitations of oriental medicine treatments to the patient at that time, the patient could have considered transferring to another hospital to obtain a definitive diagnosis of her breast condition.”

Under the current law distinguishing between medical and oriental medicine practices, the court acknowledged that “Ms. B's claim that breast cancer diagnosis and treatment were impossible using only the oriental medical practices permitted to oriental medicine practitioners has merit.”

However, it pointed out that if the patient's condition worsened despite the treatment, informing the patient that they could immediately receive treatment through other means (such as seeing a doctor) or arranging a transfer would have been the best course of action for the patient (as an oriental medicine practitioner).

The court stated that “the scope of responsibility for an oriental medicine practitioner cannot be narrowed down to only what is diagnostically and therapeutically possible within oriental medicine,” simply because limitations exist in oriental medical diagnosis and treatment.

‘Prioritizing personal treatment experience/beliefs over patient benefit’

The fact that early detection of breast cancer might have been possible had the duty to transfer and the duty to explain been fulfilled also influenced the compensation award. Furthermore, the court determined that despite the patient being in a situation of “complete reliance,” Dr. A “prioritized his own experience and beliefs regarding oriental medical cancer treatment over what would benefit the patient.”

The court did not recognize liability for damages related to treatment and nursing expenses. The reason given was that it was “impossible to determine what impact, if any, the delay in breast cancer diagnosis and treatment due to Dr. A's negligence had on the progression or metastasis rate of the cancer.”

Accordingly, the court awarded only 20 million won in compensation for pain and suffering out of the total damages claim of 374,914,341 won filed by Ms. B, dismissing all other claims.