Medical Injury Litigation and Compensation Systems in Japan

Abstract

This chapter explains the essential aspects of formal and informal Japanese systems for assessing, compensating, and prosecuting medical practice-associated harm. Distinctive features of criminal law, civil law, and administrative compensation programs are explored. Criminal law: Notorious errors at hospitals of high repute around the turn of the century focused public attention on slipshod practices and dishonesty in the medical world. The criminal justice system, amplified by media reportage, sounded a wake-up call to a medical profession previously lacking in accountability mechanisms. The health ministry and organized medicine implemented measures to improve patient safety; the effectiveness of those measures is unknown. Prosecutors’ actions policing medical quality provoked reactions from medical providers eliciting public sympathy, contributing to a string of acquittals of medical defendants and clipping the prosecutors’ wings. Civil law: Civil Code provisions governing medical injury lawsuits are fault-based and similar to rules applied in North America and Western Europe. The burden of proof of causation is relaxed in informed consent and loss-of-chance cases. Procedural reforms, including creation of health care divisions in some metropolitan district courts, have speeded the pace of judicial proceedings. Damage awards appear not to differ greatly, on average, from awards in the United States, and are applied on a more consistent, standardized basis. The volume of claims filed in court, as well as extrajudicially, is considerably lower than North American levels but has been rising steadily, with some year-to-year variation. Most compensation payments are made outside, not within, the court system. Malpractice insurance premiums, uniform nationwide for physicians in private practice without regard to specialty or geography, are far cheaper than in the U.S. Administrative compensation programs: Building on a tradition of no-fault administrative compensation schemes for harm from pollution, defective drugs, vaccines, blood transfusions, and asbestos, Japan instituted in 2009 a no-fault compensation system for infants with severe birth-related brain injuries. Backed by the medical establishment, financed through public funding, administered by a quasi-public entity and offering substantial profit opportunities to private insurers, the obstetrical injury compensation system has achieved universal buy-in by childbirth facilities hoping for protection from future litigation.