It has been finalized that a nurse prescribing herbal medicines, such as Cheonginyukwae-hwan, at a patient's request without a Korean medicine doctor's diagnosis constitutes 'unlicensed medical practice' rather than 'medical assistance.' Consequently, the 10 billion won surcharge imposed on Kyung Hee University Korean Medicine Hospital remains intact.

On the 23rd, the Supreme Court dismissed the hospital's appeal without further examination in a lawsuit filed by Kyung Hee Academy, the operating corporation of Kyung Hee University Korean Medicine Hospital, against the head of the Dongdaemun-gu Office to cancel the surcharge imposition disposition. As a result, the Seoul High Court's ruling, which overturned the first-instance verdict and ruled against the hospital, was finalized as is.

On April 24, the 1st-2nd Administrative Division of the Seoul High Court accepted the appeal by the Dongdaemun-gu Office, canceled the first-instance judgment, and dismissed Kyung Hee Academy's claim. It also ordered Kyung Hee Academy to bear all litigation costs.

Professor A, a Korean medicine doctor working at Kyung Hee University Korean Medicine Hospital, had instructed nurses that if patients came to receive prescriptions for Cheonginyukwae-hwan, Ssanghwa-tea, or Gongjin-dan to reduce outpatient waiting times, they should issue prescriptions first and report afterwards.

This came to light in November 2022 when an investigator from the Seoul Metropolitan Government's Judicial Police Bureau disguised themselves as a patient, requested a prescription for Cheonginyukwae-hwan, and a nurse entered the prescription details without a Korean medicine doctor's diagnosis to provide the medicine.

Responding to this request, the nurse entered into the Electronic Medical Record (EMR)—without any examination by Professor A—that Professor A had prescribed 30 tablets of Cheonginyukwae-hwan and transmitted it to the in-hospital dispensary. Professor A was later reported on this and wrote an initial outpatient medical record as if he had directly examined the investigator himself.

Due to this incident, Professor A received a summary order of a 7 million won fine and a 3-month and 15-day suspension of his Korean medicine doctor license. The Dongdaemun-gu Office imposed a 1 billion won surcharge in lieu of a 3-month business suspension on Kyung Hee University Korean Medicine Hospital, citing the violation of the Medical Service Act for having nurses perform medical practices outside their license scope.

The first instance canceled the surcharge, judging that the nurse merely entered pre-determined prescription details in accordance with Professor A's prior instructions and patient requests, rather than independently diagnosing and prescribing.

However, the appellate court overturned the judgment, holding that the nurse should be seen as having practically 'prescribed' the medicine to the patient.

The Seoul High Court drew attention to the fact that Cheonginyukwae-hwan is not a simple throat lozenge or health food, but a pharmaceutical product used to treat bronchial symptoms and other conditions. Noting that gastrointestinal disorders or skin rashes may occur depending on an individual's constitution, and that caution is required for pregnant women or those with diabetes, chronic diseases, or specific drug allergies, the court determined that examination and prescription by a Korean medicine doctor were necessary.

At the time, the investigator had never received an examination or prescription from Professor A. Nevertheless, because the nurse entered the prescription details of Cheonginyukwae-hwan into the EMR upon the patient's request and transmitted it to the in-hospital dispensary so that the actual medicine could be received, the court judged that this amounted to a prescription rather than simple medical assistance.

The court stated, "Such actions by the nurse must be regarded as practically prescribing the pharmaceutical product Cheonginyukwae-hwan to the patient."

The fact that Professor A had given prior instructions could not serve as a basis that the act was not an unlicensed medical practice, either.

The court stated that Professor A's instruction was "to have the nurse make prescriptions according to patients' requests without considering individual symptoms or effects for an unspecified number of patients," and that it was "illegal and cannot be permitted under the Medical Service Act."

It further added, "The existence of an illegal prior instruction cannot justify the nurse's actions nor grant the nurse the qualification to perform medical practices outside their license."

Accordingly, the court judged that the nurse's action exceeded the scope of medical assistance permissible under the guidance of a Korean medicine doctor and constituted a medical practice restricted solely to Korean medicine doctors, and that Professor A's instruction violated Article 27, Paragraph 5 of the Medical Service Act by causing a medical professional to perform medical practices outside their licensed scope.

The argument that the 1 billion won surcharge was excessive was also rejected. Considering points such as the fact that if the surcharge were calculated based on the hospital's sales revenue instead of a 3-month business suspension it would amount to 2.14524 billion won, but only 1 billion won was imposed in accordance with the statutory upper limit, the court held that the disposition could not be viewed as an abuse or deviation of discretionary power.

Although Kyung Hee Academy appealed in dissatisfaction with this, the Supreme Court dismissed the appeal without further examination, finalizing the 1 billion won surcharge disposition.

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