A revision to the medical dispute mediation law, which would prevent referring cases to criminal trial in high‑risk essential fields such as pediatrics and childbirth when there is no "gross negligence," recently passed a plenary session of the National Assembly. After criticism that this infringes on patients' right to a trial, the government said there is no risk of unconstitutionality.
The Ministry of Health and Welfare said this at a briefing on the 29th regarding the revision to the medical dispute mediation law. The law prevents criminal punishment of medical staff even when accidents occur in high‑risk essential medical fields such as severe conditions, pediatrics, emergency care, childbirth, and trauma. Instead, the hospitals to which the medical staff belong must purchase liability insurance and fully compensate for damages.
Medical staff must explain in advance the risks of medical procedures. Even if they are brought to criminal trial for failing to meet these conditions, the court may reduce the sentence by considering the circumstances at the time of the accident. By expanding the current special provision on offenses prosecutable only upon complaint, prosecutors cannot bring charges against the victim's will even if an injury occurs due to a medical accident.
The government says it is necessary to ease the burden of criminal punishment as doctors avoid essential medical care. Some patient groups argue this effectively gives medical staff an exceptional criminal immunity. They say it is unconstitutional because it infringes on the basic right of the public to a trial.
A Health Ministry official said, "If the number of specialists working in high‑risk essential medicine continues to decline, it could affect the lives and bodies of the public when medical services are needed," adding, "To prevent this, the provision was inevitably newly established in the revision." The official added, "There is a possibility of partially restricting basic rights," and explained, "But since this is for the lives of the public as a whole, we do not see it as an unconstitutional restriction."
Some also say the rule limiting indictments of medical staff may force patients to choose between filing a civil claim for damages and a criminal complaint. A Health Ministry official said, "This rule applies only to accidents arising from high‑risk essential medical procedures without gross negligence," adding, "If there is gross negligence or in ordinary medical procedures, it does not apply." The official added, "If the patient side wants the medical staff punished, they can file a complaint, wait for the indictment and criminal trial, and then file a claim for damages."
Cases in which gross negligence is recognized are specified as 12 types, including wrong‑site surgery. The medical community maintains the criteria are still vague. Specific standards for gross negligence and high risk will be set by subordinate regulations. The Health Ministry plans to form a consultative body of around 10 participants, including the medical community, patient groups, and experts, to continue related discussions.