Self-Diagnosing Medical Malpractice: How Japan's Physician Self-Reporting Procedures Undermine Legal Deterrence and Medical Care

• Author: Andrew N. Ackley
• Pages: 369-389

Page 369

All physicians face the risk of medical malpractice, but doctors in Japan confront the risk of criminal charges for professional negligence. In addition to the burden of criminal sanctions, Japan's Medical Practitioners Law requires physicians to report "unnatural deaths"-which include deaths potentially caused by medic malpractice-to police within twenty-four hours. The language of the rule leaves the physician's legal duty ambiguous as to the extent and content of reporting. This Comment examines the physician duty in three forms of its evolution. The first approach comes from a string of lower court cases that have emphasized the importance of the physician-patient relationship and extended the physician duty to investigation and reporting to the patient's family. This broad duty treads on constitutional self-incrimination. A second approach comes from Japan's Supreme Court's 2004 ruling that upheld the Medical Practitioners Law against constitutional scrutiny. The Court only minimally defined the physician duty, yet emphasized the physician's role in society in order to justify state control over medical practitioners. The Court's unrestrained reasoning sets up a slippery slope for state control over physicians and other private actors. A third approach to the physician duty, the 2007 proposal by Japan's Ministry of Health, Labor, and Welfare, may relieve the systemic malfunctions of the investigation and prosecution of malpractice, but the proposed investigation commission would also codify self- Page 370 incrimination. Suspect legal and policy reasoning in this evolution of the physician duty has overextended physician obligations and hindered both the deterrent effect of Japan's malpractice laws and medical care for patients. A more limited role for physicians in criminal medical malpractice investigations will better balance the private rights of doctors and the public interest in quality healthcare.

1. Introduction

Japan is unique among medical malpractice regimes in that it imposes criminal-in addition to civil-liability for "professional negligence."¹ Physicians are prosecuted criminally for negligent-as opposed to reckless or intentional-misconduct,² and sentenced typically to fines, license revocation, and much less often, prison terms.³

Physicians also carry the burden of reporting their own possible negligence, a burden that carries constitutional baggage given the possibility of criminal prosecution. Article 21 of Japan's Medical Practitioners Law requires physicians to report "unnatural deaths" to police within twenty-four hours of the death.⁴ Undefined by the Medical Practitioners Law,⁵ the term "unnatural death" remains murky,⁶ leading to confusion over its application.⁷ District and high courts have understood the physician duty to include investigation and reporting to the patient's family as to the cause of death, which is justified by the physician-patient relationship.⁸ In a landmark 2004 case, Japan's Supreme Court upheld a seemingly more limited reporting requirement with different rationale, painting a broad role for doctors in society.⁹ In August 2007, Japan's Ministry of Health, Labor, and Welfare ("Health Ministry") formally established a Page 371 "neutral" government entity, an "investigation commission" separate from the police, to investigate causes of death.¹⁰ Unlike the Health Ministry's current power, the investigation commission would have the authority to compel physicians to submit to questioning in order to prevent recurrences of negligent medical care,¹¹ take swift punitive action against physicians,¹² and provide investigation reports to police.¹³

Suspect legal and policy reasoning permeates various conceptions of the physician duty through the course of its evolution. All conceptions of the physician duty overlook or dismiss the notion that the protection of silence against self-incrimination is a fundamental constitutional right with inherent societal benefits.¹⁴

Doing away with the application of the criminal system to medical malpractice, however, would be a misstep. Aside from the important social function criminal law serves in Japan,¹⁵ tort-oriented systems such as the United States often deny potential plaintiffs access to remedies and therefore lack accountability and deterrence.¹⁶ Japan's system does need reform, however.

This Comment argues that suspect legal and policy reasoning in the evolution of the physician duty has put physicians in an inequitable bind that undermines the deterrent purpose of criminal law and the practice of medicine. Lower court decisions, while grounded in contract law, have overlooked the imposed self-investigation standard that pits doctors against themselves. The Supreme Court's 2004 decision may appear to be supported by precedent, but the Court's reasoning for obligating physicians to society is both unrestrained and unfounded. While the Health Ministry's proposal would eliminate procedural barriers to punitive medical review, its mandatory questioning for use in criminal prosecution merely codifies self-incrimination. Looking forward, a less extensive reporting requirement will better balance punitive review of medical care with the rights of doctors and the needs of patients.

Part II of this Comment explains the history of Japan's criminal medical malpractice system and reporting laws. Part III reveals the flaws in the various legal interpretations of the physician duty. Part IV argues that a more limited role for physicians in reporting possible malpractice would avoid over-deterrence, which undermines both the goals of malpractice law and the practice of medicine. Page 372

2. Japan Imposes Criminal Liability for Medical Malpractice Yet Struggles to Uniformaly Define the Physician Reporting Obligation

Japan employs strict yet ill-defined reporting requirements to enforce its criminal professional negligence charge for medical malpractice. Part A describes generally the Japanese healthcare system and the laws pertaining to it. Part B outlines how Japan's lower courts have extended a physician duty to report unnatural deaths. Part C addresses the Supreme Court's ruling as to the constitutionality of the Medical Practitioners Law. Lastly, Part D defines the practical difficulties of medical malpractice prosecution in Japan and the proposed administrative solution.

1. Japanese Law Imposes Criminal Liability for Medical Malpractice and Requires Physicians to Report Their Potentially Criminal Behavior

   To put medical negligence in context, healthcare in Japan meshes free-market and state- controlled policies. The medical system is organized as a fee-for-service system where patients may select their physician and physicians may select their employer.¹⁷ The Health Ministry regulates fees, which are uniform nationwide,¹⁸ while universal health insurance covers treatment for injury sustained by medical error.¹⁹

   Japanese negligence law supports both civil and criminal actions for medical malpractice. Prosecutors pursue criminal liability with the charge of "professional negligence causing death or injury,"²⁰ a charge not found in U.S. criminal law.²¹

   The standard of care is measured by the practices expected by the local medical environment surrounding the medical institution.²² To be convicted of negligence, the doctor's conduct must fall below the standard of care and the substandard conduct must have caused harm to the patient.²³ Page 373 Civil and criminal actions continue to rise in Japan. The overall incidence of civil actions, however, is low compared to countries such as the United States,²⁴ where criminal prosecutions are usually reserved for reckless-knowing disregard for patient safety-or intentional acts of harm.²⁵ Still, civil litigation in Japan has doubled between 1995 and 2005. Criminal cases have increased at an even greater pace, nearly tenfold between 1999 (10 cases) and 2006 (98 cases).²⁶

   Criminal prosecution for medical malpractice serves a distinct purpose in Japanese society. It arguably creates the most fear,²⁷ stemming largely from the public attention surrounding medical prosecutions,²⁸ and serves an important public accountability function.²⁹ Victims of negligence often turn to criminal prosecution when they feel that civil litigation does not sufficiently punish the physician or when they want to know the truth about a medical outcome.³⁰

   Punishment is more severe, and prosecution is more likely, where it appears that the doctor is attempting to cover up mistakes.³¹ The Health Ministry has established the Medical Ethics Council, which examines criminal negligence and determines punishments, including mandatory training, suspension, or revocation of medical licenses.³² Other sanctions include imprisonment-generally, around one year- probation, or fines.³³

   The most ominous aspect of criminal medical malpractice prosecutions, however, is the reporting requirement. Article 21 of Japan's Medical Practitioners Law requires doctors to notify the police within twenty-four hours of a patient death that is determined by the doctor to be "unnatural."³⁴ The ambiguity as to the extent of reporting has not gone unnoticed. Courts and administrative agencies have set differing parameters with differing rationales. Page 374

2. Japan's Lower Courts Reason That the Physician-Patient Relationship Supports Extension of the Physician duty to Investigate and Report on Unnatural Deaths

   Japanese courts have trended toward an extensive physician reporting obligation, which is justified by the...