J Korean Med Assoc.  2016 Aug;59(8):592-601. 10.5124/jkma.2016.59.8.592.

Implications of the concept of the standard of care on self-regulation and medical ethics based on medical regulation

• Kim KY
• Kim B

• KMID: 2349836
• DOI: http://doi.org/10.5124/jkma.2016.59.8.592

Abstract

Self-regulation has a long tradition in countries such as Germany. In healthcare, a professional level of quality is known as the standard of care, but the concept is not defined by law. In practice, this concept has developed into physician self-regulation. In addition, a normative judgment about the medical standard can be understood as a concept developed by precedent related to medical malpractice cases. The law functions reactively rather than proactively. However, clinical ethics has a wider scope within the legal field than simply the corrective function of medical liability. This study focuses on a legal approach to self-regulation, the normative concept of medical standards in legal criteria, and its requirement. Regarding civil responsibility, the paper reviews an assessment of autonomy in the determination of the medical standard. In comparison to the disciplinary system of Germany's criminal law, the offenses of doctors under Korean law is considerably below the international standards for self-regulation. In fact, discipline for malpractice is effectively regulated by the state. Therefore, when doctors take an ethical approach, it can help protect patients and at the same time raise a sense of professional responsibility. This plays an important role in the complementary relationship between medical ethics as a preventive function and the standard of care or practice standards as a part of self-regulation. In conclusion, self-regulation can have a much more effective and positive impact on relationships between the patient and the doctor and strengthen preventive measures for the patient's safety within medical regulation.

Keyword

Medical standard; Profession; Disciplinary system; Medical regulation; Medical ethics

MeSH Terms

Criminal Law
Delivery of Health Care
Ethics, Clinical
Ethics, Medical*
Germany
Humans
Judgment
Jurisprudence
Liability, Legal
Malpractice
Self-Control*
Standard of Care*

Reference

1. Raimund W. Limits of regulatory power in the medical selfgovernment to physicians of public health insurance. NZS. 1999; 113–120.

2. AZQ. 1995 was organized by BAK and KBV and 1997 reorganized as public association [Internet]. Berlin: AZQ;cited 2016 Jul 25. Available from: http://www.aezq.de/aezq/uber/aufgaben-und-ziele/.

3. Kim B. Study on the legal status of the German Federal Medical Association and the German Federal States as public corporation. Korean J Med Law. 2013; 21:87–105.

4. AZQ. For programm National care guidelines (NVL) initiated by BAK, KBV and Association of the Scientific Medical Societies in Germany, members: AWMF [Internet]. Berlin: AZQ;cited 2016 Jul 25. Available from: http://www.leitlinien.de/nvl/.

5. Supreme Court of Korea. Concept of medical standard. 2009-Da17417 (May 21, 2009); 2005Da5867 (May 31, 2007); 91Da23707 (May 12, 1992).

6. Wieland W. Structural transformation of medicine and medical ethics. Heidelberg: C. Winter;1986.

7. Baldwin R, Cave M, Lodge M. Understanding regulation: theory, strategy, and practice. 2nd ed. Oxford: Oxford University Press;2012.

8. Sethuraman KR. Professionalism in medicine. Reg Health Forum. 2006; 10:1–10.

9. Kangarani E, Hampe D. The professional ban of § 70 (1) of the Criminal Code in a comparison to the revocation of approbation by §5 BAO. Medizinrecht. 2014; 32:797–803.

10. High Administrative Court (OVG) of Luneburg. Command of the specialist examination for health reasons according to Art.6 (2) German Doctor's Rule (April 23, 2015). 2015. Az. 8 PA 75/15.

11. Bavarian Administrative Court (BayVGH). License suspension for alcoholism female doctor(November 15, 2011). 2011. Az. 21 CS 11.2252.

12. Ellbogen K. The revocation and the suspension of approbation. ArztRecht. 2012; 9:229–234.

13. Laufs A, Katzenmeier C, Lipp V. Medical law. 6th ed. Munich: C.H.BECK;2009.

14. Hampe D, Mohammadi E. The exercise of the disciplinary power against physicians of public health insurance (panel doctor). NZS. 2013; 18:692–698.

15. Laufs A, Ulsenheimer W, Kern BR. Handbook on medical law. Munich: C.H.BECK;2010.

16. High Administrative Court (OVG) of Luneburg. Revocation of license due to medical billing fraud. 2014. Az. 8 LA 142/13 (Juli 23, 2014).

17. Bavarian Administrative Court (BayVGH). Punishment on a medical director of hospital caused by donations of pharmaceutical companies: sentenced to 11 months in prison, fines and license revocation. 2010. Az. 21 BV 09.1279 (September 30, 2010).

18. Shin HH. The current status of civil litigation over medical malpractice and procedural challenges. Korean J Med Law. 2010; 18:7–42.

19. Hansis ML, Hansis DE. The medical malpractice: not disputing but improving. Lansberg/Lech: Ecomed;2001.

20. Supreme Court of Korea. Using one antibiotic without antibiotic sensitivity test. 2008. 2007Da75396 (April 10, 2008).

21. Supreme Court of Korea. Liability of medical professionals for diagnosis and treatment of empyema. 2012. 2010Da76849 (September 13, 2012).

22. Kim KY. Study on the responsibility for medical care of foreign patients: the cultural differences and peculiarities of the language risk for medical standard. Hum Rights Justice. 2009; 396:42–60.

23. Kim KY. The organizational duties and basis of the hospital responsibilities. Kyung Hee Law J. 2010; 45:21–54.

24. Kim KY. The use of new medicine and basic concept of civil liability. Korean Lawyers Assoc J. 2010; 59:77–118.

25. Supreme Court of Korea. Blood poisoning by the infection. 1998. 98Da12270 (July 24, 1998).

26. Leape LL, Brennan TA, Laird N, Lawthers AG, Localio AR, Barnes BA, Hebert L, Newhouse JP, Weiler PC, Hiatt H. The nature of adverse events in hospitalized patients: results of the Harvard Medical Practice Study II. N Engl J Med. 1991; 324:377–384.

27. Son YS. Bioethics from the standpoint of medicine. J Korea Bioeth Assoc. 2010; 11:77–84.

28. Choi KS. Medical ethics and professional education: educational status and roles of philosophy. J Hum Stud. 2007; (12):218–243.

29. Seoul Western District Court of Korea. Liver resection by the misdiagnosis of liver cancer. 2013. 2010KaDan72529 (February 13, 2013).

30. Supreme Court of Korea. Breast biopsy based on misdiagnosis by the another hospital with same standards. 2011. 2009Da65416 (July 14, 2011).

31. Supreme Court of Korea. Failure to explain the possibility of malignancy (breast cancer). 2009. 2008Da60162 (January 15, 2009).

32. Park YL, Baek K. A review on legislation of learning duty of medical persons: based on 'Health Practitioners Competence Assurance Act' in New Zealand. Inha Law Rev. 2015; 18:357–383.