Oriental medicine professionals' duty to inform patients.

• Author: Lee, Sun Goo

ABSTRACT: Oriental medicine has constituted a significant portion of health care in Korea, but discussion regarding the legal duties of Oriental medicine professionals has been marginalized. This article proposes the first step in discussing the duty of Oriental doctors and pharmacists to inform their patients about the medicine they provide. It begins by introducing the only decision the Supreme Court of Korea has made regarding the legal obligation of Oriental medicine professionals, where the Court held that the Oriental medicine retailer had a duty to provide information about the medicine being sold. This article supports that decision of the Supreme Court and further argues that other primary providers of Oriental medicine--Oriental doctors and pharmacists--should also bear the duty to inform. The conclusion is driven from the fundamental principle of the Korean Constitution: that everyone is entitled to the right to self-determination. In discussing the scope of information doctors and pharmacists should provide, this article notes the unique features of Oriental medicine used in Korea. The author concludes that Oriental doctors and pharmacists should inform their patients of the nature and effect of the medicine being provided, detailed usage instructions, potential risks associated with the medicine, and information regarding combined use with conventional medicine. As for restorative Oriental medicine, doctors and pharmacists should particularly provide instructions regarding its unique restorative purpose.

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Oriental medicine has constituted a significant portion of health care in Korea. In 1991, researcher Yong Il Lee found that nearly three out of four survey participants (74-4%) had used Oriental medicine in Korea. (1) Almost twenty years later, the Korean Ministry of Health and Welfare confirmed this finding by reporting that more than four out of five Koreans (81.5%) had had an experience with Oriental medicine. (2) Furthermore, over half of these respondents (69%) expressed willingness to use Oriental medicine again in the future. (3) The Ministry also reported that nearly nine out of ten Koreans over 60 years of age (87.8%) had been using Oriental medicine, and that a great majority of the users (90.4%) were satisfied with this medicine. (4) It is thus highly likely that the use of Oriental medicine will continue to grow as Korean society ages. (5) In response to this increase, the Korean National Health Insurance plan started to cover some uses of Oriental medicine in the late 1980s, and this expanded insurance coverage is expected to further boost the consumption of Oriental medicine. (6)

Despite the prevalent use of Oriental medicine in Korea, little research on the legal aspects of Oriental medicine has been published. Probably due to Korea's current favorable attitude towards modernity, the laws governing conventional medicine have been actively discussed, but the laws regarding Oriental medicine have been seriously marginalized. (7) Only one scholarly article has been published, which discusses a case involving an Oriental medicine retailer's duty to inform. (8) Several graduate theses have discussed Oriental medicine professionals' duty to inform.

Oriental medicine has unique characteristics that need to be taken into consideration when defining the responsibility of Oriental medicine professionals. (9) Treatments provided by Oriental medicine professionals are often based on a holistic understanding of the human body--an understanding that is fundamentally different from the theory of conventional medicine. (10) In addition, consumers of Oriental medicine are reported to be less informed about their medicine as compared to users of conventional medicine. (11) These features of Oriental medicine make expert-provided information more crucial for consumers to make an informed decision. They also point to a need for Oriental medicine professionals to provide an extended scope of information about the medicine being provided. Because of such features of Oriental medicine, the duty to inform that Korean courts have imposed on conventional medicine professionals cannot be directly applied to Oriental medicine professionals.

In 2004, the Supreme Court of Korea issued the first and only decision regarding an Oriental medicine expert. (12) The Court applied the duty to inform to the defendant, an Oriental medicine retailer who sold Oriental medicine without providing detailed dosage instructions. Due to a lack of information regarding how to consume the herb, a patient overdosed and died of side effects. The Court held that the retailer was liable for neglecting to inform his patient about the medicine because the retailer violated the right of the patient to determine how to consume the medicine-ultimately, the right to self-determination protected under the Korean Constitution. (13) The Court held that, to protect the patient's right to make an informed choice, the retailer (who has expertise in Oriental medicine) bears the duty to warn the patient (who does not have such information) of the possibility of side effects.

This article accepts the view of the Supreme Court and proposes that the duty to inform should also be applied to other primary providers of Oriental medicine. (14) Two main points are argued to support this conclusion: (1) In order to protect the constitutional right of patients to determine whether and how to consume Oriental medicine, the law should mandate Oriental doctors and pharmacists, who are equipped with expertise in the field, to help patients without such resources make an informed decision; and (2) The scope of information that patients need for the purpose of making an informed decision needs to be determined based on the characteristics and common patterns of use of Oriental medicine in Korea.

The first section introduces how the Korean civil courts have developed the principle of duty to inform in the area of conventional medicine and how the Supreme Court applies this duty to the Oriental medicine retailer. The second section discusses whether the duty to inform is applicable to Oriental doctors and pharmacists, and what information these experts should provide, particularly when Oriental medicine is used for a curative purpose. The discussion about the scope of information that experts should offer accompanies a factual inquiry into the use and characteristics of Oriental medicine in Korea today. Section three explores whether the suppliers of restorative Oriental medicine bear the duty to inform users, and if so, what information should be provided. Restorative Oriental medicine in Korea is distinguishable from curative Oriental medicine in that it is used to restore bodily energy, not to heal a particular symptom of an illness. (15) Section four follows with a brief summary of the discussion and the conclusion.

Conventional Medicine Professionals' Duty to Inform and Application of Duty To an Oriental Medicine Retailer in Korea

Conventional Medicine Professionals' Duty to Inform

Constitutional foundation of duty to inform in Korea

Article 10 of the Korean Constitution states, "All citizens shall be assured of human dignity and worth and have the right to pursue happiness." (16) Based on this provision, the Constitutional Court of Korea has stated that everyone has the right to personality and the right to pursue happiness. (17) These fundamental rights, the Court noted, entail the right of individuals to determine their own fate, which is known as the right to self-determination; only when one can make a voluntary and informed decision about one's own future can one live a dignified life and pursue happiness. (18) The Court has repeatedly held that this right to self-determination is a constitutional right that cannot be infringed upon by the government or a private party. (19)

Based on the right to self-determination acknowledged by the Constitutional Court, Korean civil courts have imposed the duty to inform on conventional medical professionals since the 1970s. (20) Although there is no Civil Act provision that explicitly mandates health care providers to provide information about the treatments they offer, the Supreme Court of Korea decided that health care providers bear the duty to explain the treatments to patients so that patients can decide for themselves whether or not to receive the treatment. (21)

The Supreme Court has highlighted the asymmetry of information between health care providers and patients in imposing the duty to inform. According to the Supreme Court, medicine is highly complex and difficult for laymen to understand, while medical professionals have specialized expertise in the medicine they prescribe. (22) Hence, for patients to make an informed decision about their health, health care providers should offer patients adequate information about the treatments that are being provided. (23) The introduction of the legal obligation has made remarkable changes to the way medicine is practiced, as physicians previously had full discretion over patient treatment while patients were regarded as mere objects of the cure. (24)

Scope of Application of Duty to Inform

The Supreme Court first imposed the duty to inform on physicians who were performing invasive procedures such as surgery. (25) Invasive treatments raised more salient and compelling questions about an individual's right to make an informed decision about bodily integrity and privacy. Over time, the Supreme Court has extended the scope of application to non-invasive medical examinations and medications that have a health risk unknown to the patient. (26) The Supreme Court has held that the duty to inform applies to any medical treatment that has a possibility of side-effects or that could lead to grave results such as death. For example, in 1994, the Supreme Court held a physician liable for not providing sufficient information about the side effects of a...