Public and Private Justice: Redressing Health Care Harm in Japan

Abstract:     
Japanese legal structures addressing health care-related deaths and injuries rely more on public law institutions and rules than do the common-law North American jurisdictions, where private law adjudication is predominant.

This Article explores four developments in twenty-first century Japanese health care law. The first two are in the public law sphere: criminal prosecutions of health care personnel accused of medical errors, and a health ministry-sponsored “Model Project” to analyze medical-practice-associated deaths. The Article addresses a private law innovation: health care divisions of trial courts in several metropolitan areas. Finally, the Article introduces Japan’s new no-fault program for compensating birth-related obstetrical injuries.

Conclusions: (1) Criminal law’s importance as a force to improve medical quality will likely diminish, due to public and professional reaction against prosecutorial overreaching. (2) The health ministry’s “Model Project,” despite various limitations, reflects a welcome emphasis on objective peer review of adverse events in hospitals, and on transparency to patients, families, and the public about events leading to health care harm. (3) The track record of trial courts’ health care divisions in shortening clogged court dockets is encouraging. Employment of court-appointed experts not beholden to the parties is intriguing, but more easily accommodated by continental legal systems of an inquisitorial nature than by common-law systems based on adversarial principles. (4) The no-fault obstetrical compensation system is off to a promising start, though premiums are collected at a level that far outstrips compensation obligations. If the system proves successful, Japan may consider extending no-fault principles to redress a wider range of health care harms.

Number of Pages in PDF File: 22

Keywords: Japan, medical error, malpractice, comparative health law, criminal law, no-fault compensation

JEL Classification: D74, I18, K13, K32, K41, N45

Accepted Paper Series