"A Sales Rep in the Operating Room?" Doctor Hid Surgical Assistance and Collected NHIS Benefits; Supreme Court: "It's Fraud"

"The Doctor Was in Charge, So Not Guilty?"
Supreme Court Overturns Appeals Court Ruling
"Hiding Sales Rep's Involvement Is Fraud"

Medical staff move through an operating room at a university hospital. The photo is unrelated to the article. Yonhap News Agency

A doctor who involved nonmedical personnel, including a medical device salesperson, in surgeries, concealed their involvement and obtained health care benefits from the National Health Insurance Service (NHIS) was found to have committed fraud. The ruling held that even if the doctor performed the main part of a surgery, simply claiming health care benefits for a procedure that included unlicensed medical practice constituted deception of the NHIS.

According to legal sources on October 26, the Supreme Court, with Justice Cheon Dae-yeop as the lead justice, overturned a lower court ruling that found a hospital director identified as A not guilty of fraud. A had been indicted on charges including fraud and violating the Medical Service Act. The Supreme Court remanded the case to the Seoul Central District Court.

A was indicted on charges of allowing B, a medical device salesperson, to participate in surgeries at the hospital, including hip hemiarthroplasty, from April 2015 to April 2019. Investigators found that B, who was not a medical professional, used a retractor to hold open the surgical site and, among other things, held instruments while A inserted an artificial joint.

A was also accused of concealing B's participation in the surgeries from the NHIS and claiming health care benefits, thereby obtaining a total of about 95 million won in 23 claims through May 2019. The central issue at trial was whether claiming health care benefits constituted fraud when a doctor performed the main part of a surgery and a nonmedical person only provided some assistance with medical treatment.

The first trial found A guilty and sentenced him to two years and six months in prison and a fine of 5 million won. The appeals court, however, reversed the fraud conviction and reduced the sentence to two years in prison, suspended for three years, and a fine of 5 million won. While finding that B had engaged in unlicensed medical practice, the appeals court said, "B performed only a very small portion of the assistance with medical treatment, while the defendant personally performed the main medical procedures," and ruled that "these circumstances alone are insufficient to establish that the defendant intended to defraud the NHIS."

The Supreme Court reached a different conclusion. It noted, "When a person who is not a medical professional performs medical procedures alongside a medical professional at a medical institution, that institution is not legally entitled to receive health care benefit payments from the NHIS." It went on to rule, "If the institution's representative conceals this and claims payment for health care benefits as if the medical procedures had been lawfully performed by a medical professional, that constitutes a fraudulent act that misleads the NHIS," adding that "the intent to commit fraud is also established if the representative knew of these circumstances and accepted them, even implicitly."

The Supreme Court, however, limited the scope of the fraud conviction to "the cost of the surgery in question." It added, "Because the nonmedical person participated only in the surgery itself, it is difficult to find fraud in claims for health care benefits related to other costs, such as hospitalization, medication and tests." As it overturned the acquittal on the fraud charge, the Supreme Court also overturned the remaining guilty verdicts, which were linked to that charge as concurrent offenses, and sent the case back for a new trial.

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