On March 22nd, 2021, a national petition titled “Please Punish the Hospital and the Murderer Doctor who Killed my Baby!” was posted. The writer claimed that her baby died as soon as he was born due to a doctor being drunk during surgery. However, this case is just the tip of the iceberg. With thousands of medical disputes occurring every year, the Sungkyun Times (SKT) analyzed the controversy of medical disputes, their processes, and the social efforts needed to solve them.
Introduction of Medical Disputes
The Medical Dispute Mediation Act (MDMA) defines a medical dispute as an argument that occurred as the result of a medical accident. Therefore, types of medical disputes are classified by where the medical accident happens: diagnosis and examination, treatment, or nursing and care. According to the Korea Consumer Agency’s report about consumer redress, medical disputes happened the most during the treatment phase. Medical disputes start with an attempt to reach an agreement between the parties. If the parties do not reach an agreement, they have to mediate with an institution like the Korea Consumer Agency (KCA) and the Korea Medical Dispute Mediation and Arbitration Agency (KMDMAA); otherwise, this can lead to accusations or lawsuits. For example, in an incident in 2018 in which nerves were damaged after an acupuncture session at an oriental medical clinic, the parties did not arrive at an agreement. Thus, the KMDMAA completed the mediation, deciding that the oriental medical clinic compensate the patient for damages. In the case of lawsuits, both civil and criminal lawsuits are possible, but getting to this stage is difficult because criminal suits are only applicable in special cases, such as a death, and the responsibility of proving accidents for civil suits is imposed solely on the patients. According to the KMDMAA’s report regarding medical disputes that occurred from 2014 to 2019, the number of medical disputes steadily increased from 2015 to 2018, doubling from 827 cases in 2014 to 1,589 cases in 2018.
Problems with Medical Disputes
-The Truth of KMDMAA
KMDMAA is a public corporation that was established on April 8th, 2012, to solve medical disputes quickly and fairly. It is composed of a medical accident assessment team as well as a coordination committee: the former takes charge of judging the medical accident damage, and the latter determines the amount of damage compensation based on the decision of the assessment team. The problem is that the credibility of the medical accident assessment team is not high enough. According to polling agency T. Bridge corporation’s 2019 survey, 75.4% of people disagreed with the question of whether KMDMAA is effective or not. In fact, since KMDMAA both judges and decides on the cases based solely on medical charts written by doctors, it is inevitable that patients feel the results of the judgments are biased. Another problem is the lack of force of the coordination committee. According to Article 27 of the MDMA, the hospital’s participation is essential to begin adjustment. In other words, if a medical team refuses an adjustment, the coordination committee has no power to start the adjustment forcibly, and they should decide on rejection. According to the data released by KMDMAA in 2020, 44.8% were rejected among mediation petitions received by KMDMAA from 2017 to 2020 because of the onesided refusal of medical teams. This result proves that KMDMAA is not doing its job for patients even though it exists to assist patients.
-Criminal Punishment: A Vicious Cycle in Medical Disputes
Criminally prosecuting doctors as a consequence of medical disputes will eventually bring negative effects to patients since they get medical services from those doctors. Although there is a vicious cycle, cases of imprisoning doctors have increased as a punishment for medical accidents. From the infant death case in 2017 to the old man death case in 2020, the imprisonment of doctors consistently occurs. Unfortunately, this punishment does not consider the special characteristics of medical science, the possibility of mistakes. Through a national petition, Kim Dong-seok, President of the Korean Medical Practitioners Association, pointed out that the imprisonment of doctors is identical to punishing them for failing to reach the state of God. As well, due to the burden of paying high compensation from criminal punishments, initiating medical disputes has become more difficult. The highest amount of medical dispute compensation from 2016 to August 2020 was 516 million won. According to the Korea Insurance Research Institute (KIRI)’s report of June 2020, Current Status and Challenges of Medical Compensations, compensations caused by medical disputes are increasing by 35.6% every year. This high amount of compensation makes hospitals and doctors, who already know about subsequent events, disinterested in even starting disputes. Given that the previously mentioned rejection rate of medical disputes was due to hospitals’ refusal to participate, it seems that criminal punishment leads to rather negative results. Doctors might take a defensive stance in the treatment of patients as well as participation in medical disputes, and this will negatively affect patients and depress the medical industry as a result.
Develop a Future Based on the Past
-Expansion of the Authority of KMDMAA
To make settlements of medical disputes smoother, KMDMAA needs to be a compelling force. In fact, there have been arguments that the adjustment process should be started by KMDMAA regardless of the participants’ agreements. However, due to doctors’ disagreements claiming the violations of rights, increased social costs, and the contraction of the medical industry, it has not yet been realized. Therefore, a pre-trial screening panel can be a solution that does not cause those problems but rather produces results that patients can be satisfied with. A pre-trial screening panel is a system that can be enacted during the mediation process, especially before filing a suit, and it is implemented in more than 20 states of the United States (US). This system does not carry any binding forces but gives a clear opportunity for patients to investigate, for medical teams to avoid medical litigation, and a chance for adjustment agencies to judge the cases fairly. If Korea introduces the pre-trial screening panel system, KMDMAA should be granted the authority as a mandatory investigating process before a mediation process starts. With a direct intervention in mediation, the KMDMAA can also increase its credibility. Also, the system can help to shorten the period of time needed to solve medical disputes. The frequency of going to trial after a judgment of a screening panel was reported to be about 30% in America from the Korean Legal Research Institute’s 2021 report, and the trial period was also reduced from two years to one year. According to the latest five-year data about the adjustment and meditation suspense dates, submitted by KMDMAA as parliamentary audit data, the medical dispute adjustment period of 2020 was an average of 126 days which exceeded the legal period. If the pretrial screening panel system is introduced under these situations, it might save both patient’s and the medical team’s time and money by shortening the periods of medical disputes.
-Institution of Medical Malpractice Liability Insurance
Medical Malpractice Liability Insurance (MMLI) is insurance for doctors to pay in advance for a possiblefuture-medical accident. With MMLI, doctors can lessen their risks and give patients a certain monetary incentive, solving medical disputes quickly. Even though MMLI exists in Korea today, the real insurance rate is not high. According to KIRI’s report of March 2020, the MMLI market is developing but is still inferior to the entire insurance market. Therefore, the system should be changed to make doctors obligatorily join MMLI. Before making MMLI mandatory, however, there are some things to consider. Since insurance is very expensive, requiring all doctors and hospitals to get MMLI from the beginning is impractical. To this problem, KIRI suggests introducing a graded approach, like Germany. Germany has selectively institutionalized MMLI by each medical institution’s medical accident resolution capability. KIRI pointed out that Korea also needs a process to force private hospitals or clinics to join MMLI and then give options for financially competent hospitals, like university hospitals. Likewise, if the insurance arranges money differently with the possibility of a medical accident, this can also help increase the admission rates of MMLI.
Medical disputes cause ever-lingering pain to both patients and doctors. In our society, the complete solution for medical disputes will remain an eternal task because it is impossible to prevent medical accidents. As for medical disputes, the most important thing is to create harmony between patients and doctors. When they understand each other’s stance and do their best for medical harmony, the disputes will ideally get solved more amicably. For Korea to develop as a medically advanced country, the SKT hopes Kingos have continued interests in medical disputes.