Robert B Leflar, University of Arkansas and University of Tokyo Law Professor
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Transpacific Study Reveals Different Liability Fears
JENNIFER BOULDEN
Where American doctors fear tort, Japanese doctors fear handcuffs.
A recently published study finds the threat of litigation looms large for medical professionals in the United States and Japan. U.S. malpractice cases consume vast quantities of time and money in addition to the risk of damage to professional reputation, but in Japan, the stakes are even higher.
A study by Robert B Leflar, a law professor at the University of Arkansas and University of Tokyo, shows that facing a recent public crisis of confidence in medical institutions and physicians’ fear of criminal charges, Japan is tentatively forging a new approach to medical liability cases.
Leflar said that in many ways Japanese and American healthcare is comparably sophisticated, with some obvious differences such as Japan’s universal coverage. Japanese physicians pay much lower liability premiums than U.S. providers do, about $700 annually, regardless of specialty or geography.
But medical errors in Japan are costly in other ways. Serious medical error is a crime against the state. Conviction rates are high—the overall conviction rate in Japan is close to 99 percent, though Leflar said guilty verdicts for medical error are reportedly “somewhat lower.” While they don’t typically involve jail time, an arrest for a doctor can mean intense national media attention, professional ruin and lasting personal shame.
Civil liability cases for medical errors also exist in Japan, and are more common than the criminal cases (though 40 to 50 times less frequent than in the United States by some estimations), but receive less attention.
Japan’s culture is steeped in the dichotomy of honor and shame, and medical error combines that emphasis with the elevated place physicians hold in Japanese society. Deadly mistakes and subsequent cover-ups by the highest of the high rivet the nation’s attention, making tabloid-esque waves throughout the country’s media outlets.
A Series of Unfortunate Events
Since World War II and until the past decade, criminal liability in medical cases in Japan only occurred two or three times a year.
That changed in 1999, when Japan’s media caught wind of a series of avoidable medical disasters, starting with a mix-up between two patients with similar names who mistakenly received each other’s heart and lung operations. A string of non-related but similarly serious medical error cases, often with attempted cover-ups, soon surfaced. Each made daily front-page headlines across the country.
“Collectively, those cases shook Japan’s traditionally deep confidence in physicians and hospitals to the core,” Leflar said.
The annual incidence of physician criminal prosecutions jumped as public trust waned. From 1999 to 2004, the number of criminal medical error prosecutions jumped to an average of 15 a year.
The increasing number of high-profile criminal prosecutions has physicians anxious, Leflar said, partly because the intense scrutiny by the media disproportionately amplifies their effect.
Dr. Michael Fetters, director of the Japanese Family Health Program, a family medicine clinic and cross-cultural laboratory at the University of Michigan, agreed. “There’s a huge tension between the legal and medical systems here and in Japan,” he said. “But I think Japanese physicians now have a sense of almost paralysis.”
The challenge in any liability case, he explained, is learning to distinguish medically adverse events from medical error. That distinction can be especially blurry for local law enforcement not trained in medicine. Fetters said Japanese law officials sometimes press for criminal prosecution and let the experts sort it out later.
In one highly controversial instance in 2006, a young Japanese woman in labor bled to death, an outcome Fetters said is rare but not necessarily an error. Soon after the death, her obstetrician was arrested and led in handcuffs out of the hospital. “That absolutely sent shivers down the spines of physicians in Japan,” Fetters said. “Student interest in obstetrics/gynecology has plunged since then.”
The Apology Ritual
Criminal penalties for convicted physicians vary, most frequently calling for suspension or revocation of the medical license, restitution and what is often the bitterest consequence for the Japanese, a sincere public apology. The formal ritual requires that the hospital president or physician publicly and humbly bow before the wronged patient or family, and before the media. “The avoidance of that kind of apology is really a strong motivator in Japanese medical circles,” Leflar said. “It’s a mark that stays with the person for the rest of his or her life.”
Convicted physicians who regain their license seldom return to practice in their specialty, often leaving major hospitals to practice in smaller, rural areas.
Doug Wojcieszak is founder and president of the Sorry Works! Coalition in the United States, which promotes institutional reform of medical error policies by embracing the concept of a sincere apology. Wojcieszak has not yet lectured in Japan, but has spoken to audiences in other Asian countries (including some in which death or injury of a patient can result in a vigilante revenge killing of the doctor) and finds that true apologies are as effective in those cultures as in the States. “Whatever your culture, you don’t want to get the runaround. You want someone to admit their mistake, apologize and mean it,” Wojcieszak said. “That’s just human.”
Leflar agreed, saying that many of the Japanese judges he interviewed said the apology was often a central concern of the patients or their families.
Time for a Change
One of the most surprising things Leflar found when beginning his research in Japan was that the country that introduced so many quality control standards and policies to U.S. manufacturing had little quality control emphasis for healthcare. Peer review was practically nonexistent and there were almost no accountability mechanisms compelling disclosure of errors.
“There’s a saying in Japan that’s really informative: ‘Keep a lid on that which smells,’” said Fetters. “That’s been the traditional approach in Japan, though it’s starting to change.”
The series of highly publicized Japanese cases in 1999 and 2000 coincided with the Institute of Medicine’s seminal report, To Err is Human, which had an enormous impact in Japan. “Coming out at the same time as these big medical error cases, [the report] legitimated the issue of patient safety as a worldwide issue, gave the issue even more of a newsworthy aspect in the minds of the Japanese media, the Diet and in public opinion,” Leflar explained.
The convergence of factors was a catalyst. The past few years have seen a gradual trend away from secrecy and unchallenged hierarchy and towards greater transparency and self-reporting of medical errors by Japanese medical institutions. Japanese epidemiological medical error studies are now underway. Patient safety protocols are a larger concern for patients and institutions alike. A new freedom of information law passed by the Diet and increased public demand for accountability and quality are also feeding the movement.
Most promising, Leflar said, is a “model project” initiated by the Japanese Health Ministry. Currently being implemented in a few trial provinces, the project calls for a committee of relevant specialist physicians not associated with the hospital or physician to conduct the medical error investigation and make reports to the institution and the family. He said the Ministry hopes the more open and accountable process will result in more accurate investigations, quicker settlements, appropriate compensation for families and less involvement for the criminal justice system.
He also said the model project could be instructive to “American reformers seeking to link patient safety and improvement of medicolegal dispute-resolution.”
Fetters said that Leflar’s research and the transpacific dialogue are enormously important for both countries to continue to learn from and with each other. For all their differences, the two medical sectors may share a path forward into the future. “In my experience,” he said, “the principles of transparency, forthrightness and proactiveness seem to work well regardless of culture.”
February 2008
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