[Why&Next] Medical Dispute Mediation Act Revised, but Patient-Medical Community Frustrations Remain Unresolved

Mitigating Criminal Liability for High-Risk Essential Medical Care
Interpretation of "Gross Negligence" Remains Dubious
"If Outcomes Are Poor, Punishment Is Inevitable"

The medical community is in turmoil after two emergency medicine specialists were criminally prosecuted for failing to promptly diagnose a stroke in a patient in their 20s while working as residents in the emergency room. The Korean Society of Emergency Medicine and the Seoul Medical Association expressed concern, stating, "If court rulings continue to impose criminal liability on medical staff based solely on outcomes, legal immunity will inevitably take precedence over medical judgment," and added, "This verdict will further accelerate the collapse of emergency medical care."

Although a revision to the Medical Dispute Mediation Act (Act on Remedies for Medical Malpractice and Mediation of Medical Disputes), aimed at reducing the criminal liability burden in medical accidents while strengthening remedies for patient rights, passed the National Assembly plenary session last month, the controversy surrounding 'protection of medical staff' versus 'guaranteeing patient rights' remains unresolved.

Will Easing Judicial Risk Revive Essential Medical Services?

The core of the Medical Dispute Mediation Act revision is to mitigate the criminal liability of medical professionals for incidents arising from high-risk essential medical practices such as emergency, pediatric, obstetric, and trauma care. If medical professionals are covered by liability insurance and there is no gross negligence, prosecution will, in principle, be restricted. This measure considers the reality that physicians performing high-risk treatments tend to avoid essential fields due to the burden of criminal punishment. Kim Sunggeun, spokesperson for the Korean Medical Association, argues, "From the standpoint of medical staff, the fear of becoming a criminal due to unintended accidents must disappear for them to provide care with conviction."

Twelve criteria have been suggested as core standards for determining 'gross negligence', the key factor in whether to apply the exemption from criminal punishment. These include: surgeries, transfusions, or general anesthesia performed differently from what was explained or agreed upon; failure to perform essential diagnosis, monitoring, treatment, or transfer; retention of foreign objects in the body; errors involving the patient or surgical site; medication or transfusion errors, among others. The problem is that these standards remain abstract. For example, "medical actions significantly deviating from medical guidelines or commonly accepted care (Item 7)" or "failure to supervise after giving instructions to residents or other medical staff (Item 6)" can be interpreted very broadly, depending on the case. If any deviation from medical guidelines could be considered gross negligence, most medical accidents could essentially be excluded from the exemption from prosecution. The medical community voices dissatisfaction, saying, "If a patient's outcome is poor, it may ultimately be interpreted as gross negligence."

In contrast, civil society and patient advocacy groups view the exemption from criminal punishment as, in effect, a "special privilege of immunity" for medical professionals. From the perspective of victims of medical accidents, criminal liability is an important means of redress, and if the criteria for gross negligence are overly relaxed, it will, in reality, become difficult to hold medical professionals accountable for medical errors.

In response, the Ministry of Health and Welfare explained that "even if a case is not included in the 12 enumerated examples, typical violations of medical guidelines can still be fully judged as gross negligence." The ministry also stated that the determination of gross negligence in individual cases will be handled professionally by the Medical Accident Deliberation Committee, which aims to reduce the burden and uncertainty on investigative authorities.

Ongoing Controversy Over the Conflict Between Prosecution Restrictions and Claims for Damages

Controversy continues over whether the prosecution restriction provision effectively forces patients to choose between claiming damages or filing a criminal complaint. The government explains, "The prosecution restriction provision applies only to high-risk essential medical practices without gross negligence and is separate from the right to claim damages." In fact, the conditions for restricting prosecution in this revision include "full compensation for damages," meaning the restriction only takes effect after compensation is completed. This provision incentivizes medical professionals to provide prompt compensation even before investigations begin, and for patients, it allows for quicker and more adequate compensation without waiting for lengthy court proceedings, given that medical malpractice lawsuits currently take an average of 26 months just for the first trial.

Shin Hyun-doo, Director of the Medical Institution Policy Division at the Ministry of Health and Welfare, stated, "If a patient wants the medical staff to be punished, they can delay claiming damages, file a complaint, wait for prosecution and the criminal trial, and then claim damages afterward." He added, "However, if medical staff properly explain the incident to the patient and provide appropriate compensation, it is rare for the patient to proceed with criminal charges against the medical staff."

On the other hand, Ahn Gi-jong, head of the Korea Patient Organization Council, pointed out, "The special provision that restricts prosecution on the condition of compensation for damages could, in effect, force victims and their families to choose between receiving compensation and pursuing criminal liability, which is why it must be improved."

The revised Medical Dispute Mediation Act will take effect one year after its promulgation. The Ministry of Health and Welfare plans to establish a separate consultative body—including representatives from the medical community, patient advocacy groups, government, and experts—to develop detailed implementation standards and begin discussions on subsidiary legislation in the second half of the year.

This content was produced with the assistance of AI translation services.