Adequate Explanation Must Be Provided to the Patient Before Prescribing Herbal Medicine
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A patient, who was taking prescribed medication for hepatitis B from conventional medicine, visited a Korean medicine clinic. After being prescribed Seonggan-tang, the patient complained of indigestion, nausea, and fatigue, and blood tests revealed elevated GOT 240/GPT 495. The treating herbalist recommended the patient seek further treatment at a higher-level hospital. Subsequently, the liver enzyme levels increased, and the patient developed jaundice, leading to hospitalization where antiviral drugs were administered. The patient’s condition worsened, and while being transferred to another hospital for a liver transplant, the patient died due to acute liver failure during the transfer.
Legal Issue: Can the Herbalist Be Held Criminally Liable for the Death?
The issue at hand was whether the herbalist who prescribed Seonggan-tang could be held criminally liable for manslaughter. While prescribing Seonggan-tang to a chronic hepatitis patient may not be inherently inappropriate from a medical standpoint, the question arose whether the herbalist properly observed the patient's progress and provided appropriate follow-up care after the prescription.
Seonggan-tang has shown experimental benefits such as improving liver function, increasing bile secretion, protecting the liver, and boosting general immunity. It is widely used for acute and chronic liver diseases. However, the herbalist has an obligation to explain to the patient the symptoms of hepatitis B, the treatment goals and methods (whether it is the primary, adjunctive, or combined treatment), the limitations of treatment, and potential side effects before prescribing the medicine. These explanations must be documented in the patient's medical records.
In particular, if the herbalist learned during the consultation that the patient was planning to stop taking antiviral drugs after having been on them for an extended period, the herbalist should have at least informed the patient of the risks associated with discontinuing the antiviral medication. The risks include potential viral replication and the possibility of a relapse of hepatitis B, along with the necessity for continuous monitoring. Even if the herbalist did not have an obligation to explain the dangers of discontinuing the antiviral treatment in detail, there was an obligation to at least warn the patient about these risks.
However, there was no evidence in the medical records indicating that such an explanation was provided. Furthermore, the patient should have been given the opportunity to make an informed decision about the treatment, fully comparing the risks and benefits after receiving an explanation of the treatment's dangers and requirements.
Failure in Monitoring and Follow-Up Care
In this case, the herbalist did not monitor the patient's condition after prescribing Seonggan-tang, and although the patient's liver enzyme levels sharply increased after discontinuing the antiviral drugs, the herbalist did not recommend a follow-up consultation or additional tests. This suggests that the herbalist failed to properly observe the patient's progress after the prescription.
The patient's family claimed that the herbalist assured them that the patient could manage the condition with only the herbal treatment, despite discontinuing the antiviral medication. However, there was no evidence to support this claim.
It seems that the herbalist should have monitored the patient’s progress after prescribing Seonggan-tang. If the patient's liver enzyme levels increased significantly, the herbalist should have conducted additional tests and recommended transfer to a hospital. In doing so, the herbalist would have given the patient the opportunity to make an informed decision regarding their treatment options.
Especially for patients with a history of hepatitis B, who require special care in the prescription of herbal medicine and monitoring after the prescription, the duty to explain the treatment and its potential risks is even more critical.
In this case, the herbalist was negligent in the follow-up care after prescribing Seonggan-tang, but it cannot be conclusively stated that the prescription itself caused the patient’s death. The cause of death was not directly linked to the herbalist’s prescription.
Ultimately, the patient and the herbalist reached a settlement through the Medical Dispute Mediation and Arbitration Agency, agreeing to a compensation of 20 million KRW.
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