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2018 ; 94
(4
): 167-173
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Is the "ghost surgery" the subject of legal punishment in Korea?
#MMPMID29629350
Hong SE
; Hong MK
; Park BY
; Woo KJ
; Kang SR
Ann Surg Treat Res
2018[Apr]; 94
(4
): 167-173
PMID29629350
show ga
PURPOSE: Recently a controversy has arisen about so-called "ghost surgery"
practices, and people have voiced their opinions for legal sanction against such
practices, which clearly undermine the foundation of medical ethics. However,
there has been a lack of legal basis for punishing those actions. The present
study aims to examine which pre-existing legal provisions could be applied to
regulate ghost surgery. METHODS: The Korean Medical Service Act has a provision
relating to informed consent to inhibit ghost surgery but does not include
penalty provisions prohibiting ghost surgery itself. Also, the Korean Supreme
Court precedents on this issue have not been settled as of yet. Therefore, this
study referred to U.S precedents, law books, and related papers. RESULTS: With
respect to ghost surgery, we expect the charges of bodily harm, assault and
battery, and fraud could be applied under Korean law, in addition to charges
regarding the violation of medical law, such as the omission of entries or false
entries in medical records. A patient provides consent to bodily harm prior to
surgery, and only the person who is entrusted with such permission can become the
operating surgeon in the operating room. CONCLUSION: In other words, even if
other medical professionals are present in the operating room, the operating
surgeon who received consent must take overall responsibility for the whole
process of the surgery. A surgeon should bear in mind that a violation of such
duty can constitute a criminal offense.