전화를 활용한 진료의 허용 가능성에 관한 고찰 -대법원 2020. 11. 12. 선고 2016도309 판결에 관한 평석을 중심으로

Prior to the subject judgement, the Supreme Court decided on whether or not there was an obligation for medical personnel to provide face-to-face treatment in relation to the doctor’s treatment and issuance of prescription to patients using the telephone. For that reason, the Supreme Court has shown a somewhat unclear attitude in establishing the relationship between telemedicine and face-to-face medicine. In addition, controversy has been aggravated at the same time as the Constitutional Court interpreted the provisions that underpinned the rationale for face-to-face treatment under the Medical Act contrary to the judgment of the Supreme Court. However, through the subject judgment, the Supreme Court determined that telephone treatment and prescriptions between doctors and patients do not constitute telemedicine permitted in Article 34(1) of the Medical Act. In addition, the Supreme Court judged that it violated Article 33(1) of the Medical Act on face-to-face treatment because there was no “special circumstances” to allow this. This attitude of the subject judgment seems to provide a clear interpretation of whether there is a face-to-face treatment obligation under the Medical Act, which has been a problem so far, and what types of telemedicine are allowed. However, experiencing the coronavirus outbreak, the Republic of Korea amended the Act on the Prevention and Management of Infectious Diseases on March 9, 2021, and some medical treatment and prescription using telephone between doctors and patients were allowed. Therefore, it is necessary to check the possibility of allowing medical treatment and prescription using telephone in Korea in the future, and it will be a work to materialize the “special circumstances” mentioned in the subject judgment.