Supreme Court: Concealing a nonmedical assistant’s role in surgery while claiming health insurance benefits is fraud

[Financial News] The Supreme Court has once again overturned a ruling in a doctor’s health insurance reimbursement fraud case: the doctor was convicted at trial but acquitted on appeal. The ruling means that fraud is established if someone conceals a nonmedical person’s participation in surgery and claims medical care benefits, even if that person’s role was limited to assisting by holding surgical instruments.
Legal sources said on the 26th that the First Petty Bench of the Supreme Court of Korea, with Justice Cheon Dae-yeob assigned to the case, overturned the part of the ruling concerning Doctor A on the 1st and sent the case back to the Seoul Central District Court. The appeals by the two others indicted alongside A were dismissed. A had been indicted on charges including fraud and violating the Act on the Control of Public Health Crimes (engaging in unlicensed medical practice).
A, director of a hospital in Seoul’s Gwanak District, began performing procedures including partial hip replacements in May 2015 and had B, a medical device vendor who was not a medical professional, take part in the surgeries. B held a retractor to open the surgical site and held an impactor as A struck it with a mallet to insert the artificial joint. Concealing B’s participation, A filed claims for medical care benefit costs and received 95,388,620 won over 23 claims between July 2015 and May 2019. Medical care benefit costs are the portion of national health insurance treatment expenses covered by the insurer; medical institutions claim this amount directly from the National Health Insurance Service (NHIS).
The issue was whether concealing the fact that a nonmedical person had performed some assisting tasks during surgery and claiming medical care benefit costs amounted to deceiving the NHIS. Both the trial and appellate courts found that B had engaged in unlicensed medical practice, but they disagreed on the fraud charge. The trial court found A guilty of fraud and sentenced A to two years and six months in prison and a fine of 5 million won. The appellate court ruled that B’s role was limited to an extremely small part of the medical assistance and that A had personally performed the main medical procedures, finding that intent to defraud had not been proven. It acquitted A of fraud and reduced the sentence to two years in prison, suspended for three years, and a fine of 5 million won.
The Supreme Court first considered whether the hospital was entitled to receive medical care benefit costs. The panel said, “When a person who is not a medical professional performs medical practice at a medical institution, that institution is not legally entitled to receive medical care benefit costs under the National Health Insurance Act. The same applies when a nonmedical person performs medical practice alongside a medical professional at a medical institution.” It added, “Concealing these facts and claiming payment for medical care benefits as if a medical professional had provided the care lawfully constitutes deception for the purposes of fraud.” The court said intent is also established if a person knew of these circumstances and accepted them, even if only with conditional intent. Conditional intent means accepting an outcome while knowing that it may occur.
However, the Supreme Court limited the scope of what could constitute fraud. Since B took part only in the surgeries, the court found it difficult to establish fraud in relation to medical care benefits for expenses unrelated to surgery, such as hospital stays, medication and tests. This means that only benefits related to surgery—not the entire amount received over the 23 claims—could be considered fraud, so the amount found to have been fraudulently obtained may be reduced at the retrial.
Because the acquittal on the fraud charge was linked to the remaining convictions under the rules on concurrent offenses, the lower court’s entire ruling against A was vacated. The Seoul Central District Court must rehear the fraud charge and determine the sentence.   
[email protected] Kim Dong-kyu Reporter