Law, society, and medical malpractice litigation in Japan.

• Date: 22 March 2009
• Published date: 22 March 2009
• Author: Feldman, Eric A.
• Author: Feldman, Eric A.

1. INTRODUCTION

   This Essay examines conflict over medical malpractice claims in Japan, and uses it as a lens through which to view the relationship between tort law and its social, economic, and political context. Allegations of medical malpractice in Japan have been rising rapidly. What explains the increasing willingness of people who believe that they are victims of medical malpractice to sue? And what (if anything) does the upswing in malpractice litigation suggest about the changing role and importance of the legal system in the lives of the Japanese people?

   The relationship between law and society in Japan has long been the source of scholarly speculation, and occasionally the topic of serious academic analysis. (1) The two most widely held points of view are dramatically different. One suggests that "Japanese culture" (rarely defined but generally assumed to encompass social values, norms of behavior, and modes of interpersonal interaction) places a high premium on the preservation of social harmony and the avoidance of open conflict. (2) In that view, the language of law is subordinate to the power of social integration, and leads people to forego lawsuits. The other explanation for Japan's low litigation rates posits a more structural cause, namely that the elite have created barriers to inhibit access to the legal system and limit the extent to which courts can be a potent force of social change. (3) Among the most important of those barriers are constraints on the number of licensed attorneys, the imposition of high case filing fees, a slow and costly civil litigation process, and limited damage awards. (4)

   Medical malpractice litigation provides an ideal opportunity to reexamine these conflicting theories about the relationship between law and society in Japan. Over the past several decades, particularly the past ten years, medical malpractice lawsuits have increased rapidly. (5) The numbers are small, but the rates of increase are not. From only 102 malpractice claims filed in Japanese courts in 1970, the number escalated ten-fold to 1003 in 2003; in the decade between 1992 and 2002 claims grew by almost 150%, from 371 to 906. (6) To what extent does this support the view that cultural constraints to litigation have softened over the past decades? Does it suggest that structural barriers previously inhibiting access to the formal legal system have been reconfigured?

   Unlike most analyses of litigation in Japan that examine its relative infrequency, this Essay focuses on the growing frequency of medical malpractice litigation and offers an explanation for its cause and consequences. It claims that more malpractice claims are reaching the courts for both cultural and structural reasons. First, formidable structural barriers to civil litigation have been softened, some that affect all civil cases and others specific to medical malpractice. The increasing size of the bar, for example, makes it easier for potential plaintiffs to find attorneys, and the creation of a new expert witness system expedites malpractice suits. Second, these structural changes have occurred in, and are intertwined with, a broader social and political climate that is increasingly fertile ground for the escalating rates of malpractice claiming. An overall decrease in the trust placed in medical elites, for example, and media coverage that highlights malfeasant doctors have created an atmosphere in which malpractice litigation is increasingly attractive.

   The consequence and broader significance of the rise in medical malpractice claims, although speculative, is far-reaching. The interaction of structural changes that facilitate the use of the courts with broader socio-political changes that reinforce the attractiveness of litigation could well cause the number of medical malpractice lawsuits to continue to rise. Although that interaction is difficult to document, it is relatively easy to describe. The creation of specialized medical courts and the increasing availability of attorneys, for example, underscore the legitimacy of seeking legal advice and the acceptability of formalizing one's grievances into lawsuits. As the demand for attorneys grows and more claims are filed, a greater number of lawyers will be attracted to medical malpractice as a field of expertise, and courts will accommodate the growing caseload.

   Further, the rise in medical malpractice claims highlights a significant departure from the government's long-standing approach to the filing of tort-related claims, which had effectively shut the door to tort litigation. Potential litigants faced such daunting institutional barriers to suing that they had little choice but to resolve their claims through alternative channels. Ultimately, people came to prefer extra-judicial solutions to formal legal institutions. Now, through a number of loosely related reforms, the government is loosening and lessening the barriers to the courts by, for example, licensing additional lawyers, creating new court procedures that have led to shorter trials, streamlining the process for recruiting expert witnesses, and designating specialized courts to resolve medical malpractice lawsuits. Whereas a rise in the incidence of tort-based litigation was once a catalyst to the creation of alternative means of dispute resolution or administrative compensation systems, medical malpractice litigants are now promised a faster, more narrowly tailored legal process that makes suing increasingly attractive. (7) What this shift demonstrates is a new legitimacy for litigation, and an increasingly important place for law in the lives of Japanese citizens. Such a claim is difficult to support empirically; the data and observations offered in this Essay outline the argument and begin to build the case.

2. MEDICAL MALPRACTICE IN JAPAN: THE ESCALATION OF LITIGATION

   As indicated earlier, the frequency of medical malpractice litigation has changed dramatically over the past several decades. In 1970, only 102 new malpractice cases were filed in Japan. That number increased to 310 in 1980, varied between 196 and 381 from 1980 to 1992, and then began to climb, reaching 795 new filings in 2000 and 1110 in 2004 before dropping slightly over the next two years. (8) The backlog of malpractice cases also steadily rose from the early 1990s through 2004, leading to a growing concern about whether courts are able to resolve malpractice claims in a timely manner. (9) And for the first time, in 2000 and 2001, more medical malpractice cases were resolved through litigation than court-supervised mediation, and in some instances plaintiffs had joined forces by aggregating their claims. (10) Finally, the number of cases brought against government-owned or -operated hospitals also increased in the late 1990s and early 2000s, a category of cases that directly affects the state's financial well-being and reputation. (11) Compared to the overall increase in the rate of civil litigation in Japan since the late 1980s--a rise of approximately twenty-nine percent in district court filings, the bulk of which involved bad loans and debt collection--the rise of medical malpractice litigation is dramatic. (12)

   Added to the increase in civil litigation, there has also been a rise in police reports alleging malpractice. (14) Article 21 of the Medical Act (Ishiho) imposes a duty on physicians to notify the police when they observe what they believe is a "suspicious" death. (15) The exact criteria for what counts as "suspicious" are unclear, and a number of medical societies have struggled to define the types of cases that should trigger the reporting requirement. In April 2004, the Supreme Court issued a ruling in a widely reported case involving a hospital error and subsequent cover-up that challenged the reporting requirement as a violation of the right against self-incrimination. (16) The Court affirmed the duty to report, but failed to clarify the types of cases that must be reported. The notoriety of that case drew attention to the rapid escalation of police reports, which went from 21 cases in 1997, to 124 in 2000, to 248 in 2003. (17) In short, the number of newly filed medical malpractice litigation cases has increased quickly in Japan, the backlog of pending cases is much larger than in the past, and deaths that may be the result of malpractice have a greater likelihood of being reported to the police. Along a number of important dimensions, the relations between doctors and patients are more "legalized" than they were just a decade ago. (18) The rapid rate of increase in medical malpractice litigation not only raises the possibility that medical malpractice litigation could continue unabated, but it also poses questions about why such litigation has become more common and how its increase should and could be managed.

3. JAPAN'S LAW OF NEGLIGENCE, THE CIVIL LITIGATION SYSTEM, AND HOW THEY ARE CHANGING

   Those who believe that they have been injured as the result of a medical error can pursue a legal remedy under the substantive law of torts (fuho koi). (19) Tort law in Japan, unlike the plethora of conflicting rules one finds in different states of the United States, is codified and national, and the basic legal principle underlying tort-related harms is stated in article 709 of the Civil Code. Based on the nineteenth century German law of accidents, the article states that "A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence." (20) As in American tort law, the central elements of a malpractice claim brought under article 709 are the establishment of a duty of care (chui gimu no teido), evidence that the duty was breached (ihan), a causal link (inga kankei) between the breach and the harm, and damages (songai baisho). The crux of a malpractice case is generally the identification of the...