[Contribution] Criminal Special Provisions of the Medical Dispute Mediation Act: What the Medical Community Must Not Miss in the Enforcement Decree

Jang Se-chang, Attorney at Daeryun LLC

On April 23, the amended Medical Dispute Mediation Act passed the National Assembly plenary session by bipartisan agreement. Set to take effect in May 2027, one year after promulgation, this law institutionalized for the first time the 'criminal special provisions for essential medical care,' a long-cherished wish of the medical community. It is a clear step forward. However, it is too early to be relieved. The core that will determine the success or failure of the system depends on the enforcement decree and enforcement rules to be created from now on, and if one is careless, only the name 'special provision' may remain while the substance of protection disappears.

Do not forget that indictment itself is a burden

It needs to be made clear that the legitimacy of the special provision lies not in the final verdict of guilt or innocence but in 'being booked' itself. Even if it ends in acquittal, the process leading to search and seizure, summons investigation, indictment, and trial is itself a great burden on medical staff and has been a direct cause of defensive medicine and avoidance of essential specialties. Therefore, in the discussion of subordinate legislation, one must not be swept up in the approach of 'there's no problem because few end up guilty.' The standard of protection must be placed on the constant risk of booking and investigation.

The gist of the amended law is to prohibit prosecution when ① there is no gross negligence, ② the duty to explain was fulfilled, ③ liability insurance was subscribed, and ④ damages were compensated to the victim. The problem is that the substance of 'what is a high-risk essential medical act' and 'what is gross negligence' has all been delegated to subordinate legislation. The more broadly high-risk essential medical care is defined and the more narrowly gross negligence is recognized, the more the special provision comes alive; if designed the opposite way, it becomes a dead letter. This is why the subordinate legislation council operating until November this year is the real battleground.

The biggest poison-pill clause: making gross negligence an illustrative provision

The point to be most wary of is by far the standard of gross negligence. If the so-called '12 major gross negligences' excluded from the criminal special provision are ambiguous or overly broad, most accidents will be excluded from the special provision. Particularly dangerous is the trend to interpret these 12 types not as an exhaustive enumeration but as illustrative examples. The moment they are viewed as illustrative, even matters not enumerated get pulled in through abstract clauses, and the fence of protection collapses. If abstract types such as violation of basic safety management duties or acts significantly deviating from ordinary medical treatment are operated as if automatically satisfied by mere misdiagnosis or bad outcomes, the special provision is effectively hollowed out.

The Supreme Court has long strictly construed gross negligence as 'a conspicuous lack of care nearly amounting to intent.' It is gross negligence only when one carelessly overlooked a result that could have been easily foreseen with just a little care. The 12 types in the subordinate legislation should also be narrowly nailed down based on 'conspicuousness comparable to intent' in line with this precedent doctrine. Specifying 'ex ante foreseeability' so that gross negligence cannot be presumed after the fact merely on the basis that a bad outcome occurred is a red line that cannot be conceded. This is also a requirement of the principle of legality and the principle of clarity.

Practical traps of the duty to explain and liability insurance

The duty to explain also requires caution. The requirement of 'explanation within 7 days of the accident' does not match the reality of surgery and essential medical care, where it takes time to identify the causal relationship of complications, and a hasty face-to-face meeting during an emotionally heightened period may rather escalate the dispute. The bigger problem is the room for statements made during the explanation process to be used as separate incriminating evidence. Like the Apology Laws of the US and Canada, explanations and expressions of regret must be clearly barred from being used as evidence in criminal proceedings.

In liability insurance, if the establisher fails to fulfill the subscription obligation, an irrationality arises in which even employed physicians and residents who have no say in the subscription decision are excluded from criminal protection. The result of a medical practitioner without personal fault not being protected runs counter to the principle of individual responsibility. The establisher's responsibility and the individual's criminal protection must be separated.

So that the review committee does not become a preliminary guilty verdict

The Medical Accident Review Committee is also a target of caution. If the proportion of clinical experts is low, it is difficult to sufficiently reflect the context of high-difficulty treatment, and there is concern that the committee's prior review effectively functions as a 'preliminary guilty verdict,' restricting the right to trial. The proportion of experts from the relevant medical department should be greatly increased, the parties' right to state opinions and right to raise objections should be stipulated, and the 'advisory nature' of review opinions should be made clear to guarantee the presumption of innocence.

Of course, on the patient/consumer side, there is concern that criminal immunity for a specific occupational group may conflict with the principle of equality or victims' rights. It is a point worth heeding, but this special provision has a multiple safeguard structure of 'exclusion of gross negligence + damages + duty to explain + review.' Rather, the more thickly victim relief is designed, the more the constitutional legitimacy is strengthened.

This amendment is legislation to save essential medical care. However, if the subordinate legislation is poorly designed, a law meant to save doctors could instead be distorted into a 'law that mass-produces criminals among doctors through gross-negligence rulings.' The task the medical community must most focus on in the council now is clear. Preventing 'illustrative provisioning' and stipulating 'exhaustive enumeration'—that is precisely what determines the success or failure of this system.

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[Contribution] Criminal Special Provisions of the Medical Dispute Mediation Act: What the Medical Community Must Not Miss in the Enforcement Decree (Go to link)