Hello. I am Attorney Lee Young-kyung of Cheongchul Law Firm.

In medical institutions, especially in ophthalmology, dermatology, plastic surgery, and dentistry, there may be cases where promotional emails are sent out to advertise events.

In this case, the act of inducing patients as per Article 27, Paragraph 3 of the Medical Act may be problematic, and depending on who sent the email, the provisions regarding non-medical personnel's medical advertising under Article 56, Paragraph 1 of the Medical Act may also be a concern.

[Question]

Is it considered patient inducement or non-medical advertising if a third party (agency) that is not a medical professional sends event medical advertising emails to an unspecified number of people?

[Answer]

This can be judged differently depending on each individual case, and the content of the advertising email and the structure of future medical fee settlements should be examined.

The Medical Act prohibits acts of inducing patients in Article 27, Paragraph 3, while allowing medical advertising in accordance with Article 56 and below. In other words, medical advertising, where medical institutions and medical professionals take the lead in presenting or informing consumers about medical services, medical institutions, and medical professionals, cannot be regarded as acts of inducing patients under Article 27, Paragraph 3.

The Supreme Court has ruled that ‘medical advertising acts do not constitute patient ‘inducement’ as specified in Article 27, Paragraph 3 of the former Medical Act unless it can be assessed as a specific act type explicitly prohibited in the main text of Article 27, Paragraph 3, or unless there are special circumstances such as significantly disrupting the order of the medical market, and even if such advertising is done through an employee of a medical professional or a third party that has been requested by a medical professional, it should not be considered as ‘introduction or recommendation’ or ‘commission’ of the patient.’ (Supreme Court 2010 Do 1763 judgment).

The aforementioned Supreme Court ruling involved a case where a physician and a community site operator sent emails twice to 300,000 community site members under the title ‘Recruiting a trial group for LASIK/LASEK with OOO’ stating that ‘Just by applying, you can have LASIK/LASEK surgery at a famous ophthalmology clinic in Gangnam for 900,000 won. One lucky applicant will definitely receive an opportunity for LASIK/LASEK experience’ which resulted in the prosecution of 20 applicants who underwent LASIK and LASEK surgery for 900,000 won as per the event advertisement content, found to violate the Medical Act.

In this case, regarding the email sending actions of the physician and the community operator, it was concluded that it constitutes medical advertising aimed at an unspecified number of people and thus, without any special circumstances, cannot be seen as patient ‘inducement’ defined in Article 27, Paragraph 3, and even if the actions took place through Company B, who was requested by Defendant A, it does not constitute ‘introduction, recommendation’ or ‘commission’ of the patient, leading the Supreme Court to not recognize a violation of the Medical Act.

Then, is such email sending necessarily allowed? Not at all.

According to the Ministry of Health and Welfare guidelines, if a community operator (third party) sends medical advertising event emails to an unspecified number of people and receives a portion of the medical fees from the medical institution as a commission for introducing or enticing patients who came from that advertisement, this could constitute an act of inducement as per Article 27, Paragraph 3 of the Medical Act. Additionally, whether sending emails to 300,000 members was aimed at an ‘unspecified’ number of people could also be a point of contention if the issue arises in practice.

Furthermore, there has been an increase in businesses providing or conducting medical advertising media, with the Ministry of Health and Welfare stating that such medical advertising agency business is permissible, but it should be noted that the actual subject of medical advertising must be the medical professional or medical institution to avoid issues under Article 56, Paragraph 1 of the Medical Act.

Cheongchul Law Firm provides advice to various medical institutions, medical advertising platforms, and health checkup reservation platforms, possessing expertise in medical laws, medical device laws, and other medical fields. Cheongchul employs lawyers from large law firms and corporations to directly handle clients' cases.

If you are considering cases or advice related to medical law, please feel free to contact us.