원외처방 약제비 환수의 법적 근거

Abstract

The object of this research paper is to expound on the legal basis of outpatient prescription in excess of medical care benefits by medical institutions, as well as of the drug fee refund of the National Health Insurance Corporation. For such a purpose, the present research paper focuses on criticizing the decision of the Seoul Western District Court, delivered on 28 August, 2008. The crux of the decision was the defendant's plea of set-off against the plaintiff's claim. The defendant, the National Health Insurance Corporation, collected excessive drug fees from the plaintiff medical institution which had written out prescriptions, by setting-off the excessive drug fees against medical care benefits. The defendant made a plea of set-off by a tort damage claim or damages for a breach of contract. The court denied the plea of set-off and ruled in favor of the plaintiff. However it is difficult to abide by the court's ruling. The plaintiff's act of prescribing in excess of medical care benefits satisfies the conditions of tort of illegality and liability under article 750 of the Korean Civil Law. The main points of argument of the present research paper are as follows: First, in accordance with the separation of prescribing from dispensing practices, the National Health Insurance Corporation cannot, on the basis of paragraph 1 of article 52 of the Act of National Health Insurance, collect excessive drug fees from the medical institution which wrote out prescriptions. However whether the prescribing practices of the medical institution constitute a tort in relation to the National Health Insurance Corporation is a separate matter. Second, the National Health Insurance System is based on limited financial resources. As a result, this limits the discretionary powers of medical institutions. The legal provisions which seek to establish the golden means between 'medical validity' and the 'maintenance of the health insurance system' should be the standard of medical care benefits. Moreover the standard of medical care benefits is mandatory in nature. A violation of mandatory rules is not always illegal, but the violation of the standard of medical care benefits should be considered as illegal. Given that the standard of medical care benefits has binding force externally and in general, notwithstanding special conditions to the contrary, such a violation should be illegal. Third, in determining whether the plaintiff's prescribing practices in violation of the standard of medical care benefits constitute a tort the present case erred by failing to distinguish between the conditions of liability and illegality. In particular, the court viewed the nonviolation by the plaintiff of its duty of care in treating patients as an illegality matter, when it should have been considered as a liability matter. The fact that the plaintiff fulfilled its duty of care is irrelevant to the illegaility matter. Moreover such a fact is a legal matter between the plaintiff and the patient, having no direct bearing to the relation between the plaintiff and the defendant. By considering the prescribing practices by the plaintiff in violation of the standard of medical care benefits from the viewpoint of liability, the plaintiff's act satisfies the liability condition either by fault or grave negligence. However such a conclusion is based on legal interpretation, rather than on legal policy considerations. Ideally it would be best for the practices of the medical institution and the standard of medical care benefits to coincide. Realistically, this is not so and that is why such disputes like the one in this case arise. The question is a matter for further deliberation. The present case is being appealed. The author suggests a different method of resolving the issue, other than by means of a lawsuit. An action at law should be a last resort. Since both parties to the case share the common objective of promoting national health, there is bound to be a way other than lawsuits to solve the problem.