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Why Patients Sue Doctors: The Japanese Experience

Published online by Cambridge University Press:  01 January 2021

Eric A. Feldman
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Extract

The cost of health care, its growing share of the gross domestic product (GDP), and dire predictions about the future are a major political and economic issue in the U.S. The American legal system is commonly viewed as a significant part of the problem, particularly by those who believe that medical providers engage in defensive medicine in an effort to avoid malpractice litigation. Yet scholars and commentators in the U.S. have shown relatively little interest in how other nations manage legal conflict over health care and whether they might learn something from abroad about the relationship between malpractice litigation and the health care system more generally.

To that end, this article analyzes the Japanese health care experience, specifically the management of what are variously called adverse outcomes, medical accidents, and medical malpractice. How frequently do Japanese patients sue their doctors? Are medical malpractice litigation rates in Japan rising? If so, what is being done to control the increase and its impact on medical care? How well is Japan doing when it comes to balancing the needs of patients who believe they are victims of medical negligence with those of providers who think they are being unfairly accused? These are the questions, about Japan (and elsewhere), that need to be asked by those interested in the nexus of law and health care in the U.S.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 37 , Issue 4 , Winter 2009 , pp. 792 - 799
Copyright
Copyright © American Society of Law, Medicine and Ethics 2009

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References

In fact, the debate over malpractice litigation in the U.S. is extremely polarized, with little consensus about which features of the legal system are problematic (does it promote too much litigation or too little?), how to rate the relative significance of the problematic features (should we worry more about the inconsistency of damage awards or the system of expert witnesses?), or what steps should be taken to improve the system (should pain and suffering damages be capped, should juries be eliminated?). See, for example, Baker, T., The Medical Malpractice Myth (Chicago: University of Chicago Press, 2005).CrossRefGoogle Scholar
In both the U.S. and Japan, the law of torts, more specifically negligence, governs conflicts over medical malpractice. Civil Code of Japan, Article 709.Google Scholar
For a general discussion of the Japanese health care system, see Campbell, J. Creighton and Ikegami, N., The Art of Balance in Health Policy: Maintaining Japan's Low-Cost, Egalitarian System (New York: Cambridge University Press, 1998).CrossRefGoogle Scholar
OECD, “OECD Health Data 2009 – Frequently Requested Data,” available at <http://www.oecd.org/document/l6/0,3343,en_2649_34631_2085200_1_1_1_1,00.html> (last visited September 29, 2009).+(last+visited+September+29,+2009).>Google Scholar
See Campbell, Creighton and Ikegami, , supra note 3, at 89; Jeong, H. and Hurst, J., An Assessment of the Performance of the Japanese Health Care System (Paris, France: OECD, 2001): 44, 48).Google Scholar
Of course there are many factors that influence the overall health of a population, like diet and socioeconomic status, and the health care system may not be the most important.Google Scholar
More precisely, there were 102 cases filed in 1970, 310 in 1980, 371 in 1992, and 900–1100 since 2003. See <http://www.courts.go.jp/saikosai/about/iinkai/izikankei> (last visited September 30, 2009). For a discussion of the role of criminal law in Japanese medical malpractice, see Leflar, R. B., “‘Unnatural Deaths,’ Criminal Sanctions, and Medical Quality Improvement in Japan,” Yale Journal of Health Policy, Law, and Ethics 8, no. 1 (2009): 1–51, and Leflar, R. B. and Iwata, F., “Medical Error as Reportable Event; as Tort; as Crime: A Transpacific Comparison,” Widener Law Review 12, no. 1 (2005): 189-225.Google Scholar
Because of the cost and complexity of filing a lawsuit in Japan, many conflicts over medical care are informally settled before they are filed, so the number of actual malpractice disputes may be significantly higher than the data suggests. One consequence of early, extrajudicial settlement is that a comparatively high percentage of filed malpractice cases go to trial – approximately 40%, compared to less than 5% in the U.S.Google Scholar
Comparative data is difficult to find, but even rough measures clearly make the point. Compared to Japan's 1,000 cases annually, there are 15,000/year in Germany (2004), 7,000/year in the UK (2000), and 5,000/year in Australia (2003–2004). The population in each of those nations is far smaller than it is in Japan. The only countries with less per capita medical malpractice litigation than Japan have no-fault systems, like Sweden, where there are strong incentives to resolve conflicts before they reach the courts.Google Scholar
To put the malpractice litigation increase into sharper focus, in 1970 there were .09 lawsuits for every 100 doctors in Japan; in 1990, that number climbed to 0.17, and by 2005 it reached 0. 38; in short, malpractice claims grew fourfold since 1970 and increased 2.5 times since the early 1990s.Google Scholar
For an interesting comparative analysis of malpractice, see Dewees, D. N. et al., “Medical Malpractice Crisis: A Comparative Empirical Perspective,” Law & Contemporary Problems 54, no. 1 (1991): 217–252.CrossRefGoogle Scholar
See, for example, Studdert, D. M. et al., “Medical Malpractice,” New England Journal of Medicine 350, no. 3 (January 15, 2004): 283–292.CrossRefGoogle Scholar
Kohn, L. T. et al., eds., Committee on Quality of Health Care in America, Institute of Medicine To Err Is Human: Building a Safer Health System (Washington, D.C.: National Academy Press, 2000); Ikeda, S., “Iryo Jiko Hassei Hindo Chosa Kara Era Reto Wagakuni no Kanja Anzen no Genkyo to Kadai (The study of medical accidents and the patient safety issues it raises), Kanja Anzen Suishin Jyanaru 14 (2006): 56.Google Scholar
The medical malpractice insurance system also exerts only a weak influence on malpractice litigation. In Japan, all providers are insured, insurance is cheap (often bundled with membership in the Japan Medical Association for less than $1000/year), rates are fixed and do not differ by experience or specialization, and coverage amounts are modest (generally up to $1M). The structure of the insurance system may help to explain the modest size of damage awards in Japan, and it imposes a de facto limit on the investment that plaintiffs or attorneys are willing to make in malpractice cases.Google Scholar
Unlike most other nations, Japan does not report surgical data to the OECD.Google Scholar
Hasegawa, T., “Comparison of Hospital Admission Rates between Japan and the United States,” in Ikegami, N. and Campbell, J. C., Containing Health Care Costs in Japan (Ann Arbor: University of Michigan Press, 1997).Google Scholar
Ramseyer, J. Mark, “Universal Health Insurance and the Effect of Cost Containment on Mortality Rates: Strokes and Heart Attacks in Japan,” Journal of Empirical Legal Studies 6, no. 2 (2009): 309–342.CrossRefGoogle Scholar
Id.Google Scholar
Ikegami, N., “The Japanese Health Care System – Achieving Equity and Containing Costs through a Single Payment System,” American Heart Hospital Journal (Winter 2007).Google Scholar
Hisashige, A., “The Introduction and Evaluation of MRI in Japan,” International Journal of Technology Assessment in Health Care 10, no. 3 (1994): 392–405.Google Scholar
See Campbell, and Ikegami, , supra note 3, at 13.Google Scholar
Studdert, D. et al., “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” The New England Journal of Medicine 354, no. 19 (2006): 2024–2033 (pg. 2027).CrossRefGoogle Scholar
See <http://www.courts.go.jp/saikosai/about/iinkai/izikankei/toukei_04.html> (last visited September 30, 2009).+(last+visited+September+30,+2009).>Google Scholar
See Hasegawa, , supra note 16, at 103.Google Scholar
Sezai, Y., “Cornonary Artery Surgery Results 2005 in Japan,” Annals of Thoracic Cardiovascular Surgery 13, no. 3 (2007), 220–223, at 223.Google Scholar
OECD Factbook 2008: Economic, Environmental and Social Statistics.Google Scholar
Id.Google Scholar
See Ikegami, and Campbell, , supra note 16.Google Scholar
Interestingly, there are no systematic comparative studies of medical malpractice litigation. If there were, we might know more about the relationship (if any) between different forms of health care financing and different rates of malpractice litigation. Perhaps there is more such litigation in the U.S. than elsewhere because the U.S. is the only industrialized democracy that lacks some form of universal coverage. Medical culture, not legal culture, may be the key to malpractice lawsuits in the U.S.Google Scholar
Ikegami, N. and Creighton Campbell, J., “Japan's Health Care System: Containing Costs and Attempting Reform,” Health Affairs 23, no. 3 (2004): 26–36, at 30; and Tierney, L. Jr., “An Experience in Japanese Academic Medicine,” West Journal of Medicine 160, no. 2 (1994): 140.CrossRefGoogle Scholar
Wise, D. and Yashiro, N., Health Care Issues in the United States and Japan (Chicago: University of Chicago Press, 2006): 35.CrossRefGoogle Scholar
Vogel, S., “The Fall of the Mandarins,” Newsweek Japan, April 18, 2001.Google Scholar
Civil litigation of all sorts has been increasing for a number of years, with an overall increase since the late 1980s of approximately 29% in District Court filings, with most of the increase due to cases involving bad loans and debt collection.Google Scholar
Ogawa, T. et al., “The Aneha Scandal and Amendment of Japan's Building Standard Law,” Building Safety Journal, December 2007.Google Scholar
Unfortunately, this claim will remain speculative until I am able to examine the relevant litigation data.Google Scholar
See “Iryoni Kansuru Yoron Chosa,” available at <http://www8.cao.go.jp/survey/s47/S48-02-47-15.html> (last visited September 30, 2009).+(last+visited+September+30,+2009).>Google Scholar
See Akiko, N., “Zenkoku Yoron Chosa Shoho: Isha o Shinrai Rokuwari Jyoni Nenkan de Jiwajiwa Teika (Detailed Report of the National Public Opinion Survey: Trust in Doctors, 60%, Gradually Declining over 12 Years),” Asahi Soken Ripoto 147, (December 2000): 82–84.Google Scholar
Japan's three major daily newspapers, the Yomiuri Shimbun, Asahi Shimbun, and Mainichi Shimbun, had a combined circulation of almost 32 million in 2004; they are the top three best-selling papers in the world. See Wikipedia.org, s.v. “newspaper circulation,” available at <http://en.wikipedia.org/wiki/Newspaper_circulation> (last visited September 30, 2009). (last visited September 30, 2009).' href=https://scholar.google.com/scholar?q=Japan's+three+major+daily+newspapers,+the+Yomiuri+Shimbun,+Asahi+Shimbun,+and+Mainichi+Shimbun,+had+a+combined+circulation+of+almost+32+million+in+2004;+they+are+the+top+three+best-selling+papers+in+the+world.+See+Wikipedia.org,+s.v.+“newspaper+circulation,”+available+at++(last+visited+September+30,+2009).>Google Scholar
Kodama, Y., “Iryo Anzen: How Safe Is Safe Enough?” Jurisuto 1339 (August 2007): 67–74.Google Scholar
See Leflar, and Iwata, , supra note 7.Google Scholar
Feldman, E. A., “Patients' Rights, Citizen's Movements, and Japanese Legal Culture,” in Nelkin, D., ed., Comparing Legal Cultures (Brookfield, VT: Dartmouth Publishing Company, 1997); Leflar, R., “Informed Consent and Patients' Rights in Japan,” Houston Law Review 33, no. 1 (1996): 1-112.Google Scholar
Haley, J., “The Myth of the Reluctant Litigant,” Journal of Japanese Studies 4, no. 1 (1978): 359–390.CrossRefGoogle Scholar
Ramseyer, J. Mark, “Reluctant Litigant Revisited: Rationality and Disputes in Japan,” Journal of Japanese Studies 13, no. 2 (1988): 111–123.CrossRefGoogle Scholar
See <http://www.courts.go.jp/saikosai/about/iinkai/izikankei/toukei_01.html>..>Google Scholar
Filing fees were lowered in the 1990s, and more significantly for high value cases in 2003. See Courts in Japan website, available at <http://www.courts.go.jp/saiban/tetuzuki/tesuuryou.html> (last visited September 30, 2009), and Yoshitaka, W. and Shoichi, M., Iryo Funs: Medicaru Konfurekuto Manejimento no Teian (Conflict over Medical Treatment: A Proposal for Medical Conflict Management) (Tokyo: Igaku Shoin, 2001): at 142. For data on the number of licensed lawyers in Japan, see <http://www.nichibenren.or.jp/ja/jfba_info/membership/suii2.html> (last visited September 30, 2009).Google Scholar
Id. As of June 1, 2009, there were 26,944 licensed attorneys in Japan.Google Scholar
Feldman, E. A., “Shiho Seido Kaikaku to Iryo Kagu Sosho – Seigi, Taisaku, Kanteinin Seido” (Legal Reform and Medical Malpractice Litigation in Japan: Justice, Policy, and the Expert Witness System), Horitsu Jiho 76, no. 2 (2004) (in Japanese, Takao Suami, trans.): 16–23.Google Scholar
Id.Google Scholar
Id.Google Scholar
Japan Bar Association, 2006, availiable at <www.nichibenren.or.jp/jp/katsudo/toukei/suii2.html> (last visited October 13, 2009).+(last+visited+October+13,+2009).>Google Scholar
See Haley, , supra note 42.Google Scholar
See, for example, Nakajima, K. et al., “Medical Malpractice and Legal Resolution Systems in Japan,” JAMA 285, no. 12 (March 28, 2001): 1632–1640.CrossRefGoogle Scholar