51 Pages Posted: 19 Dec 2008 Last revised: 22 Mar 2013
Date Written: December 16, 2008
This Article explains the significance in Japan, hitherto little noticed elsewhere, of criminal law in regulating medical practice. The Article offers reasons of law and social structure for criminal law's role in Japanese medicine, reasons stemming in large part from the weakness of other institutions for oversight of medical quality: Japanese medicine's accountability vacuum. The requirement that physicians notify police of "unnatural deaths" is then explored - a requirement made controversial because of its interpretation by the Supreme Court of Japan to apply not only to deaths from violent crime, natural disaster and suicide, but also to deaths potentially caused by substandard medical care. This police notification requirement, taken together with Criminal Code sanctions of "professional negligence causing death or injury," has sometimes turned Japanese hospitals into crime sites, and doctors and nurses into suspects in death inquiries. The specter of criminal liability has provoked a counter-reaction from the medical world analogous to the movement for medical "tort reform" in the United States.
The Article describes Japan's obscure and peculiar system for death inquiries, a structure that has hindered systematic quality-improvement-oriented analysis of fatalities related to medical treatment. It then analyzes Japan's recent initiatives to improve transparency within medicine, facilitate extrajudicial resolution of private damage claims, spur systemwide quality improvement efforts, and diminish criminal law's role in medical quality oversight. Those initiatives include the health ministry-funded Model Project for the Investigation and Analysis of Medical Practice-Associated Deaths, and a proposed national peer review system based on the Model Project. The Article evaluates the Model Project's strengths and weaknesses, and assesses the proposed peer review system and its attendant criticisms. Finally, the Article considers whether recent Japanese developments might offer clues to the redesign of medical injury dispute resolution systems in Western nations, and concludes that the Japanese proposal for impartial expert reviews might serve as one guidepost for some Western reform efforts.
Keywords: Japan, medical error, patient safety, criminal law, comparative law, ADR, forensic medicine
JEL Classification: I18, K13, K14, K32
Suggested Citation: Suggested Citation
Leflar, Robert B., 'Unnatural Deaths,' Criminal Sanctions, and Medical Quality Improvement in Japan (December 16, 2008). Yale Journal of Health Policy, Law, and Ethics, Vol. 9, pp. 1-51, 2009. Available at SSRN: https://ssrn.com/abstract=1317032