When Cho Woo-sun -- the victim’s lawyer -- asked the clinic for CCTV footage of the surgery, one of its directors said they “got rid of all deceives because of what happened last year” -- referring to the fatal surgery in August 2018, whose video footage was broadcast on a local news network. The clinic paid 6 million won ($5,030) to the deceased patient’s family in compensation, but was allowed to continue business as usual.
Because the installation of CCTV cameras in operating rooms is not required by law, victims of a medical accident can only rely on the clinic or a hospital’s records for information on what took place inside, Cho said.
“In a medical malpractice damage claim, the burden of proof falls on the patient. Which means if patients fail to prove their case, they would suffer the disadvantages of a loss in suit,” she said.
The victim’s mother said she believes the clinic did not properly inform her daughter of possible risks. “She did not know the operation would last nearly half a day and told us to pick her up four hours later after she checked in for surgery.”
“The doctor said she had agreed to it, but I think there must have been some miscommunication.”
Jeong Hyeon-seok, a lawyer who has handled about a hundred medical malpractice suits since 2013, said language barrier is one of the chief hurdles in cases involving foreign patients, for lawyers too. So much so that while he has reviewed numerous cases involving foreign patients, only one actually went to court.
“Most lawyers who have foreign language skills are at big law firms, which may not be affordable for many,” he said.
“For the lawyers, it is not easy to explain the litigation proceedings in a foreign language, and foreigners have difficulties grasping the legal procedures here.”
While the Ministry of Health and Welfare’s Korea Medical Dispute Meditation and Arbitration Agency offers translation services, they may not meet the practical needs, Jeong said.
“Client should be assisted with translation at every step of the litigation procedure, but that is not possible with the services offered at the agency.”
The medical dispute arbitration agency’s communications officer Park Eun-hye told The Korea Herald the agency is understaffed and underfunded, leaving only one officer in charge of foreign patients. She said the officer’s role is limited to translation-interpretation in English and Chinese. The agency refers other language needs to translator-interpreters at the ministry’s Health and Welfare Human Resource Development Institute.
Another challenge foreign patients must overcome is the distance and time.
“When patients enter the country on a C-3-3 medical tourism visa, their period of stay cannot exceed three months, which expires even before a review of a case’s qualifications as a medical accident,” Jeong said. “For dispute proceedings, they have to reenter the country, often several times.”
The mother of the patient from Japan said she has to make trips between Korea and Japan multiple times for the lawsuit against the clinic. “We are lucky because (Japan) is pretty close. But I imagine it must be hard for those who live farther.”
The clinic, which has a separate reception for foreign patients, has held overseas conferences and expositions to attract foreign patients.
More foreigners are visiting Korea for medical purposes, according to government data.
In 2018, 378,967 medical tourists visited the country, which is a 17.8 percent increase from the previous year’s 378,967. This is also the highest since a policy for admitting foreign patients was first introduced in 2009. A combined 2.26 million patients have visited Korea since then, with the number increasing every year.
In response to the growing number of foreign patients, the Health Ministry has introduced a series of measures aimed at protecting them.
It instituted an accreditation system for medical institutes serving foreign patients in 2009, a complaint center for illicit foreign patient brokering in 2014, and since 2016, it has required the accredited institutes to purchase medical malpractice liability insurance.
But efforts may fall short when a patient faces malpractices.
Out of 138 foreign patients who consulted the agency in 2018, only 41 officially filed a case.
Cho explained the reason the agency’s services are not well-utilized by foreign patients to the nonmandatory nature of its arbitrations.
“(The agency’s) mediation and arbitration results cannot take effect unless both parties accept them. In other words, if the mediation falls through after months of procedures, it will have to be taken through the civil litigation process from ground zero.”
The agency’s chief recommendation in medical disputes is to settle out-of-court, for both foreign patients and domestic patients, Park said.
“A medical dispute complaint should be resolved within 90 days. You can extend it once to a maximum of 120 days,” she said. “Lawsuits tend to take a long time, which could be inconvenient for short-term visa holders.”
The 23-year-old patient’s mother said the plastic surgery clinic has offered her compensation -- the amount was nowhere close to compensate for the damage done to her daughter, but it was not what her family wants.
“I don’t think a doctor who exposed a patient to a preventable danger should be let off the hook, and face no consequences,” she said. “I don’t want anyone to go through what we went through.”
The Health Ministry’s Global Health Care Deputy Director Cho Woo-mi told The Korea Herald there are currently no measures in place to restrict or penalize medical practitioners or hospitals who have complaints -- no matter how many -- filed by patients.
She said however that “medical institutes are required to have malpractice liability insurance in order to be accredited for serving foreign patients. So if a medical accident occurs, the insurance company can pay compensation.”
“All services provided by the arbitration agency are the same for clients of all nationalities.”
Jeong admitted that the current system may not fully accommodate a foreign patient’s circumstances.
“In my experience, although there are measures to aid foreign patients in medical disputes, they are not very accessible or followed in practice,” he said, adding that these are loopholes which “will be hard to address in the short term.”
By Kim Arin (firstname.lastname@example.org