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PUBLIC HEALTH

Why Court Kicks out a Patient in Vegitative State ②

Aug. 25, 2022, 08:00 PM.

Aug. 25, 2022, 08:00 PM.

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Continues from Part 1
Jang Gyeong-bok is not the first inpatient to be sued by a hospital for eviction. 

Patients subject to eviction claims 

After reviewing court rulings collected from the court library, Newstapa reporters found 19 cases of forcible discharge similar to Jang’s case in the 2000s. 
Medical litigations in which the conflicts are so fierce that a hospital even demanded forcible discharge of patients were quite rare to occur once a year or so. Those that tried to discharge patients while refusing to further treat inpatients were the top-tier general hospitals in Korea. 
Most of the patients in such cases were in a similar situation to Jang. The patients suffered an irreversible disability due to a medical accident at the hospital, or they were in long-term hospitalization while litigating with the hospital to hold the medical staff accountable for the medical accident. 
▲Written judgments of lawsuits filed by large hospitals for long-term inpatients are piled up.
 It is difficult for the hospital to unilaterally refuse to treat patients. Article 15(1) of the Medical Service Act stipulates that “Medical personnel shall not, upon receiving a request for medical treatment or assistance in childbirth, refuse such a request without good causes.” This means that they should have “good causes” to discharge a patient who refuses to leave. 
The Ministry of Health and Welfare has presented an authoritative interpretation as follows, suggesting hospitals can refuse to treat patients in certain circumstances: “When the hospital recommends the patient to use home care, or long-term care hospital, primary medical institutions or nursing facilities with sufficient explanation and instructs him/her to discharge in a situation where it can be clearly determined medically that further inpatient treatment is unnecessary or that inpatient treatment at a university hospital level medical institution is not required.” 
This authoritative interpretation becomes a powerful “weapon” for tertiary hospitals to be used when filing lawsuits against long-term inpatients for hospital eviction. 
The tertiary hospitals try to prove “objectively” that there is no reason for the “patient concerned,” the other party to the lawsuit, to continue to be hospitalized and receive treatment at their hospital by presenting the doctor’s opinion and physical evaluation results. 
▲ Jang’s doctor wrote a statement in the course of the lawsuit arguing that he needs to be discharged.
 That was exactly what Asan Medical Center did. 
The hospital argued that there are “justifiable reasons for refusing treatment” for Jang Gyeong-bok in the lawsuit. 
“He has been receiving the same simple conservative treatment for over five years and is not in a condition to receive acute treatment that is only available at a tertiary hospital, therefore there is no need to continue receiving inpatient treatment (at Asan Hospital),” Asan Hospital wrote in a statement.
However, Jang’s side refuted it.
“(Due to this medical accident) the defendant (Jang) is receiving inpatient treatment at the hospital after suffering from hypoxic brain damage and severe sequelae that requires continuous rehabilitation and hospitalization, with a very short life expectancy of about three years and his condition is severe. Thus, it is difficult for the patient to be discharged or transferred to another hospital,” Jang’s lawyer argued. “There is no reason for the hospital to refuse treatment since he still needs to be hospitalized.”

Unpredictable litigation results

In 2016, there was a patient at Chungbuk National University Hospital who was in a similar situation as Jang. 
A pregnant woman suffered from hypoxic brain damage after cardiac arrest while undergoing surgery during childbirth. The patient fell into a vegetative state like Jang. The university hospital filed an eviction lawsuit against this patient who had been in an intensive care unit for a long time. 
“The patient does not require treatment at the Chungbuk National University Hospital, which is a general hospital or tertiary general hospital, but is in a suitable condition to be transferred to a long-term care hospital that mainly provides the conservative treatment,” the hospital claimed.
However, the Cheongju District Court did not accept the hospital’s argument. 
“Even according to the hospital’s argument, the medical contract, in this case, cannot be terminated because the patient is in a vegetative state and still needs to receive conservative treatment even after being transferred to a long-term care hospital,” the District Court ruled.
On the mere fact that the patient still needed inpatient treatment, the court ruled that the request for discharge from the tertiary general hospital was unreasonable. 
Similarly, Jang is in a vegetative state that requires continuous hospitalization but he lost the lawsuit. 
As such, it is difficult to predict the outcome of the litigation claiming hospital eviction for both the hospital and the patient. 
Like Jang, long-term inpatients who have suffered medical accidents and are in dispute with hospitals are in the gray area. Asan Hospital also has no objection to the fact that Jang needs to continue hospitalization treatment. But the hospital simply wants him to be transferred to another lower-level hospital such as a long-term care hospital while his family wants him to stay at Asan Hospital where the medical accident happened. 
What if, unlike Jang’s case, the negligence of the medical staff was acknowledged in the lawsuit? 
Then, will the patient be able to stand in an advantageous position even if the hospital filed a lawsuit for eviction? According to the precedents, this may or may not be the case. 
There was a Seoul Central District Court (No. 2013Gadan89653) ruling that the patient should leave the hospital although the medical accident due to medical staff’s negligence was recognized. On the contrary, the Seoul Northern District Court(No. 2016Gahap923) ruled that the patient did not need to leave the hospital even though there was no negligence of the medical staff.
▲ The statue of Justice Dike in front of the courthouse with scales and sword
 “Even at this moment, there are no hospital beds for severe acute patients whose lives are threatened if they do not receive help from the medical staff (of Asan Medical Center) right now outside the hospital,” Asan Hospital’s litigation attorney said at a hearing against Jang.
There is a reason for the hospital’s argument: the Health Ministry’s Standard Work Rules by Type of Medical Institution. 
The Rules classify the standard service scope for tertiary general hospitals to allow them to treat severe diseases which require advanced treatment techniques “mainly for severely ill patients.” It also recommends that each level of the medical institution make efforts to perform functions and roles that comply with the standard service classification. 
From this perspective, Asan Hospital believes that long-term inpatient Jang in a vegetative state is interfering with inpatient treatment for other seriously ill patients. According to the hospital, the average length of stay for patients in the orthopedic ward where Jang lies is one week. 
“As Jang occupies the bed, each week, at least one patient in severe acute stages such as spinal cord injury, bone tumor, and severe trauma is not admitted on time each week,” the hospital told Newstapa. 
Asan Hospital is one of the largest tertiary general hospitals in Korea with over 2,700 beds. 
Like Asan Hospital, tertiary hospitals that have filed lawsuits against long-term inpatients are dissatisfied with the court’s ambiguous standards and unpredictable judgment. 
They have argued that the Korean courts should take an attitude to “actively consider the nature of public goods and the need for efficient distribution of medical resources when deciding on the termination of a hospitalization contract.”

Silent clash of court rulings 

However, the court did not act according to the wishes of the hospital. 
So far, the courts in favor of the hospital never judged the public nature of medical resources and the issue of their efficient distribution. The courts in favor of the patient believed that the role and scope of a tertiary general hospital’s service recommended by the administrative laws was not a justifiable reason for terminating a treatment contract with the patient. 
This highlights that there are many rulings respecting the patient’s right to receive treatment at a tertiary general hospital. 
“Not falling under the standard services of tertiary general hospitals according to the Notice of the Ministry of Health and Welfare does not mean that medical personnel can refuse medical treatment or assistance in childbirth, and therefore, the fact that it does not fall under the standard services of a tertiary general hospital or that the treatment is available at hospitals or general hospitals cannot be justifiable for terminating the medical contract.” 

Judgment of Cheongju District Court / No. 2016Gadan103132, No. 2017Na15103
In the meantime, there has been a conflict of rulings among judges of courts across the country over the cases of a patient like Jang Gyeong-bok. 
In particular, there have been mixed rulings when it was deemed that the patient’s condition requires inpatient treatment like Jang but the patient is eligible to receive inpatient treatment at secondary medical institutions such as long-term care hospitals rather than tertiary general hospitals. 
For this reason, the court’s ruling sometimes seems to depend on the values pursued by an individual court rather than judicial decisions. 
“Even for the same cases of patients with a stable, unchanging symptom who can be transferred to a secondary medical institution, different rulings are being made depending on the inclinations of the judges,” Park Da-rae, a lawyer at Yonsei University Health System, wrote in her paper titled ‘Review on the Right to Terminate a Contract by Medical Institution.’
The situation is the same for the patient. It simply depends on luck.
By far, the Supreme Court has never issued a precedent that would establish the values and standards that the judiciary and society should pursue in these eviction request cases.
It is difficult to conclude that either the hospital or the patient has an advantage even based on the analysis of precedents of similar cases. 
Of the 19 similar lawsuits since the 2000s reviewed by Newstapa, there were more cases in which hospitals prevailed. Hospitals’ eviction requests were approved in 12 lawsuits and rejected in seven. 
However, tertiary hospitals often claim patients are more advantageous. 
“The judgments on similar cases differ depending on the courts but there seem to be more cases of dismissal of eviction claims,” Attorney Park wrote in her paper.  
▲ The court’s order to evict the patient stated in the ruling of the eviction lawsuit

The weight of the conservative treatment

Hong Young-gyun, a medical lawyer, said that the reason why the court orders patients to leave the hospital in special circumstances like Jang is that “the court overlooked the weight of conservative treatment.” 
He once represented the patient in a case in which Seoul National University Hospital filed a lawsuit against a long-term inpatient who fell into a vegetative state due to medical negligence. 
Patients in a vegetative state like Jang receive conservative treatment which includes various medications and rehabilitation to maintain their health and prevent symptoms from getting worse. A patient’s longevity is influenced by the quality and level of these conservative treatments. And patients perceive moving to a lower-grade hospital as a recipe for accelerating their death. 
Patients’ concerns are somewhat valid. Experts are deeply concerned too. 
The Korean Health Lawyers Association’s academic committee offered comments as follows in their paper (2019) reviewing long-term inpatient eviction claims: 
“Despite the fact that there is a difference in medical services between a tertiary general hospital and long-term care hospital or hospital, theoretically it can be said that there is no difference in conservative treatment between a long-term care hospital and a tertiary general hospital but it seems necessary to consider whether there isn’t actually such a difference or whether patients’ doubts or anxiety are vague and baseless."

Review of 2018 Major Medical Decisions / The Korean Society of Law and Medical, 2019
Realizing the weight of such conservative treatment, the court also upheld the patient’s side. 
An example is a case sentenced by the Seoul Central District Court in 2009. A female patient in her 60s had brain surgery at a university hospital which is a tertiary medical institution and suffered a brain hemorrhage, resulting in reduced consciousness and hemiplegia. The hospital filed a lawsuit against the patient to be discharged from the hospital. Similar to Jang in Asan Hospital, this patient was in the process of claiming compensation for medical malpractice. 
At that time, the Seoul Central District Court ruled in favor of the patient, judging that there was no justifiable reason for the hospital to refuse treatment. 
“Even if the patient’s condition does not necessarily require treatment at a tertiary medical institution, there is also the need for hospitalization because it is easy to see that treatments such as removal of sputum, urine management, prevention of bedsores and physical therapy that the defendant(patient) is currently receiving are intended to improve the patient’s symptoms and going to the hospital to receive such treatment causes convenience,” the court wrote.
“From a medical point of view, conservative treatment can be viewed as a simple medical practice because of the repeatability of treatment and prescription,” Hong said. 
In fact, tertiary hospitals often cite the fact that there is no additional treatment plan other than conservative treatment as one of the reasons for requesting eviction. 
Nevertheless, Hong’s opinion is that conservative treatment is “medical practice to guarantee the most basic right to life under the Constitution from the patient’s point of view.”
Although it is hard to conclude the causal relationship, Jang Gyeong-bok received conservative treatment at Asan Medical Center, received conservative treatment and outlived the expected longevity. He is still alive. 

Leave the hospital for public welfare 

In December 2021, the verdict of the lawsuit filed by Asan Medical Center for Jang’s eviction was reached.
“Jang is obliged to move out of the hospital bed, in this case,” the court ruled.
Jang’s son read a paragraph from the judgment of his father’s case and said it was “cruel.” 
One of the medical lawyers who reviewed the case also said so. The Seoul High Court’s view of long-term patients like Jang was unprecedented. 
“Inpatient treatment in a tertiary general hospital is a socially limited medical resource which requires to be utilized and distributed more efficiently for the public welfare to meet the above purpose. In this regard, when determining whether there is a justifiable reason for a tertiary hospital to request discharge of a patient by terminating the inpatient treatment contract, it should be based on whether the patient continues to require inpatient treatment at the level of a tertiary hospital, not the need for the patient to continue receiving treatment but… It seems that Asan Hospital would have had a lot of trouble with the hospitalization and treatment of severe acute-stage patients who can only be treated at tertiary hospitals as Jang does not leave the hospital.”

 Dec. 2021, Seoul High Court, No. 2021Na2021065 / Court ruling for eviction claim of Asan Medical Center vs. Jang Gyeong-bok
With this court’s ruling, Jang was stigmatized as an “obstacle” to the realization of the public welfare of our society and hospital treatment for critically ill patients. 
Jang, who is in a vegetative state after a medical accident, lost neither the opportunity to hear and read the court’s ruling nor the ability to be frustrated and angry. His son does not understand why his father has to be kicked out of the hospital. 
“I don’t think this is the only reason behind such a ruling,” Jang’s son said, swallowing the anger. 
▲ Jang’s son reads out the verdict of his father’s case. 
“Simply put, it means that you are hopeless and suffering a lot, but because you are refusing to be discharged, one who is more ill or could be treated cannot be hospitalized. So, you should go. It sounds like this and it’s very cruel. We go to a hospital because we are ill and they should say that the patient can no longer be treated. But what we understand, it’s like saying, ‘Now we don’t need to treat him. there is no use for us.’ It breaks my heart.”

 Jang Won-jae, Son of Jang Gyeong-bok 
The Seoul High Court’s decision in Jang’s case of hospital eviction was the first case to justify the forced discharge of long-term inpatients on the ground of the importance of efficient use of medical resources, public welfare and the role of a tertiary hospital. 
In April 2022, the Supreme Court also upheld the Seoul High Court’s ruling without any objection.
The initial reaction of medical lawyers who reviewed the case of Asan Hospital vs. Jang  Gyeong-bok at the request of Newstapa was similar. 
“I don’t think this ruling should be widely known,” Park Yoon-won, an attorney who has previously represented a patient in an eviction case, said.
▲ Yoo Hyun-Jeong, attorney and the President of the Korean Health Lawyers Association (KHLA), is interviewing with Newstapa.
 “Jang’s case was confirmed by the Supreme Court,” Yoo Hyun-Jeong, a lawyer and the President of the Korean Health Lawyers Association, said after reviewing the case. “There is a good chance that tertiary hospitals will apply the ruling of this particular case when filing eviction lawsuits against long-term inpatients in the future.” 
“As treatment has a very significant impact on a patient’s life and body, the justifiable reasons for refusing treatment as stipulated in Article 15(1) of the Medical Service Act should be recognized exceptionally only in cases where treatment is not possible due to lack of facilities, manpower, professional knowledge, or experience, etc. rather than broadly acknowledged,” Yoo said.
“In light of this, it would be difficult to view a case outside the scope of standard services of a tertiary general hospital under the administrative law or the treatment scope of medical institutions, or a case where treatment is available at hospitals or general hospitals as a justifiable reason for refusing treatment,” she added.
It was the first time that the patient’s right to life and the right to choose treatment took a back seat to the tertiary hospital’s right to business in a series of court rulings for the hospital’s eviction claim.
Some criticize that the logic behind this ruling ignores an uncomfortable truth that tertiary hospitals do not reveal.
Hong, who reviewed the case from a third person’s point of view, pointed out three main reasons why tertiary hospitals would file an eviction lawsuit against long-term inpatients who suffered medical accidents. 
“There are three main reasons for eviction claims: economic, operational and managerial,” Hong said. “Replacing a new patient with a long-term inpatient is profitable and there is a risk of damage to their reputation as well as agitation among other inpatients.”
▲Medical lawyer Hong Young-gyun is interviewing with Newstapa.

The last chance for Jang Gyeong-bok’s family

Seven years after the accident, Jang’s family still believes it was the hospital’s fault. 
His wife is enduring every day for the sake of her son and daughter. 
“I try hard not to show my feelings to my kids and try to do my best. You know, the apple doesn't fall far from the tree,” she said. “There are many ups and downs in our life. I just hope my son and daughter get through this difficult time well, thinking of how their mother is doing.”
The hospital will not back down. 
“The reality is that the hospital cannot do anything for the patient if he continues to refuse to leave despite the court’s ruling that there was no medical negligence,” Asan Hospital told Newstapa. “Endless disputes against court rulings will lead to damage and burden to other patients. And all procedures were inevitably carried out in accordance with the court’s ruling and the Ministry of Health and Welfare’s operation guidelines for tertiary general hospitals.”
Jang Gyeong-bok’s family filed a retrial in May 2022 with the Seoul High Court and the Supreme Court. 
Three months later on August 25, 2022, the first hearing for the retrial was held at the Seoul High Court. 
▲Jang Gyeong-bok, who is in a vegetative state due to a medical accident, lying on the bed of Asan Medical Center with holding his hands together
By
ReportingHong Woo-ram, Kang Hyeon-suk
Video ReportingKim Ki-cheol, Jeong Hyeong-min, Shin Young-chul, Lee Sang-chan
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