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When injuries or death due to medical errors occurs in Japan, patients or their family members usually call the police. Contrasted with the civil malpractice litigation common in America, in Japan, arrests and prosecutorial decisions are based on results of criminal investigations. Medical error in Japan is considered a crime against the state.

Japanese prosecutors have several legal weapons in medical cases that are not available to American prosecutors. A standard charge used against medical personnel under the Japanese Criminal Code is “professional negligence causing death and injury,” a crime not found in U.S. statute books.

“In the United States, errant physicians and hospitals fear malpractice lawyers,” says Robert B. Leflar, a Medical Sciences law professor at the University of Arkansas who spent a year in Tokyo studying how people and institutions deal with malpractice. “In Japan, the greater concerns are whistleblowers, the media and the police. Japanese aggrieved by perceived medical error tend to call the police and try to get a prosecutor involved.”

Unlike the US, Japan does not have a peer review and professional discipline system, or a hospital accreditation process. The absence of these accountability mechanisms means they are not compelled to report medical errors.

Leflar found that although some Japanese hospitals in recent years are more frequently voluntarily reporting medical errors, secrecy surrounding medical error remains even more of a problem in Japan than in the US. For that reason, Japan’s criminal code also contains sanctions for attempts to cover up mistakes by altering patients’ charts.

In comparing the two countries, Leflar said a greater convergence of objectives — including compensation, a sincere apology, discovering the truth about what happened and sometimes revenge — between prosecutors and victims in Japan may explain why medical-error victims there appear more likely to seek criminal prosecutions.

“In Japan, the weakness of peer review and professional discipline structures, the lack of mandatory hospital accreditation and the absence of objective, hospital-by-hospital statistics on outcomes of medical treatment — not to mention the relative infrequency of civil malpractice litigation — enhances the social importance of criminal law as a way of increasing transparency in the medical world,” Leflar said.

Japanese officials admit that police and prosecutors are not ideally suited for medical quality control. But the weakness of other structures has forced them into that role. To compensate for this, Japan’s health ministry is running a pilot project in which independent medical specialists investigate medical errors to obtain facts and reach conclusions in a more timely, less expensive and hopefully more accurate and objective fashion than the legal system allows.

“If the Japanese project succeeds,” Leflar said, “American reformers seeking to link patient safety and improvement of our dispute-resolution system may find the Japanese approach instructive.”

Source: University of Arkansas: http://dailyheadlines.uark.edu/9726.htm