Discerning Why Patients Die: Legal and Political Controversies in Japan, the United States, and Taiwan
The processes of discerning the causes of medical injury, and sometimes attributing them to errors by medical professionals, are fraught with legal and political controversy. This short descriptive essay presents several key features of how Japan, the United States, and Taiwan address the discernment process through their respective legal systems. Statistical trends in civil, criminal, and administrative systems for fixing responsibility and determining compensation are set out, and areas of political controversy are identified. Of particular interest are the diminishing number of civil malpractice claims in the United States, the recent establishment of medical specialty courts and no-fault obstetrical injury compensation systems in Japan and Taiwan, the relative prominence in the 21st century (in terms of physician concern, if not in the absolute number of cases) of criminal prosecutions of medical personnel in Japan and especially in Taiwan, and legislative proposals now under consideration in Japan and Taiwan to channel medical disputes away from the criminal law system and to improve peer review, dispute resolution, and patient safety.
The Law of Medical Misadventure in Japan
This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations’ medical law systems. The paper addresses criminal sanctions for Japanese physicians’ negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries. Among the paper’s findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at the turn of the 21st century, peaked from 2004 (civil cases filed) to 2006 (cases police sent to prosecutors), and have since declined. Civil Code provisions of substantive law governing medical injury compensation differ little from rules applied in North America and Western Europe, although the burden of proof of causation is relaxed in informed consent and loss-of-chance cases. Damage awards appear to be at least as high on average as in the U.S., and are applied on a more consistent basis. Procedural reforms, including the institution of health care divisions of district courts in some metropolitan areas, have speeded up the pace of court proceedings. The new no-fault compensation system for birth-related injuries. offering substantial profit opportunities (as well as a theoretical risk of loss) to private insurers, has achieved virtually universal buy-in by childbirth facilities hoping for protection from future litigation. Evaluation of the system’s operation is still premature but worthy of scholarly attention. Should the obstetrical compensation system prove successful, it may serve as a springboard for the expansion of no-fault principles to cover a wider scope of medical injuries — a topic now under study.
"WITH NO EVIL INTENT": THE CRIMINAL PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE
If a person publicly practising as a physician, on being called upon to attend a sick woman, prescribes, with foolhardy presumption or gross recklessness, a course of treatment which causes her death, he may be found guilty of manslaughter, although he acted with her consent, and with no evil intent.