의료전문직의 ‘medical staff privilege(參與醫 特權)’ 제한에 관한 연구 - 미국 독점금지법의 시사점을 중심으로 -

Healthcare occupies a lot of portion in national economy and also has a strong effect on society. Moreover, many cases in foreign countries can be found. Recently, healthcare reform in Korea is in progress and on debate. Since the study on antitrust law in healthcare is very rare in Korea, therefore, a study on the application of Monopoly Regulation and Fair Trade Law to healthcare is required. The subject of this paper is the restraint of medical staff privilege. If the medical staff privileges, which mean the eligibility to practice at open hospitals, are excluded in the United States, antitrust claims based on the violation of the Sherman Act have been raised a lot. The proliferation of these lawsuits in the United States, which are characterized as antitrust lawsuits,can be understandable situation. The reason is because doctors who don’t belong to specific hospitals are seriously damaged, if the medical staff privileges are excluded and doctors cannot use facilities of open hospitals. In order to decide to allow the privilege of certain doctors, hospitals have to rely on peer review to maintain high quality of medical services, and it is not easy to find alternative of peer review in the professional areas like healthcare. However, there are possibilities that members of the peer review can abuse power to unfairly exclude privileges of potential competitors. In this sense, it is asserted in the U.S. antitrust lawsuits that the restraint of medical staff privilege can be the illegal restraint of trade in violation of section 1 of Sherman Act and can be monopolization or an attempt to monopoly by hospitals in violation of section 2 of Sherman Act. Though Korea adopted open hospital system quite recently, there is still no case related with the exclusion of medical staff privileges. However, medical staff privilege system of Korea is not different from that of the United States in principle. Thus, the U.S. jurisprudence on the exclusion of medical staff privileges can be referred in the interpretation of “practice that interferes with or restricts the activities or contents of the business” based on Article 19.1.9of Monopoly Regulation and Fair Trade Law of Korea. Evaluation of peer review in the antitrust cases is very critical issue not only in medical professionals but also other professionals such as lawyers and technicians. So the antitrust jurisprudence on the medical staff privilege can be referred in other professionals. In terms of open hospital and the medical staff privilege, the core characteristics on healthcare market and hospital structure can be better understand. Recently the U.S. antitrust cases related with hospitals have been introduced in Korea. Though these cases dealt with the legal issues on the medical staff privilege, the medical staff privilege has not been well known in Korea. The medical staff privilege is very useful to understand the background of these cases.