The Regulation of Medical Malpractice in Japan and the Education of the Physician

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One aspect of the health care equation that we need to consider is the malpractice issue in other countries.

How Japanese legal and social institutions handle medical errors is little known outside Japan. For almost all of the 20th century, a paternalistic paradigm prevailed. Characteristics of the legal environment affecting Japanese medicine included few attorneys handling medical cases, low litigation rates, long delays, predictable damage awards, and low-cost malpractice insurance. However, transparency principles have gained traction and public concern over medical errors has intensified. Recent legal developments include courts’ adoption of a less deferential standard of informed consent; increases in the numbers of malpractice claims and of practicing attorneys; more efficient claims handling by specialist judges and speedier trials; and highly publicized criminal prosecutions of medical personnel. The health ministry is undertaking a noteworthy “model project” to enlist impartial specialists in investigation and analysis of possible iatrogenic hospital deaths to regain public trust in medicine’s capacity to assess its mistakes honestly and to improve patient safety and has proposed a nationwide peer review system based on the project’s methods.

One set of reasons for the relatively few claims and malpractice law specialists in Japan is economic; both patients and plaintiffs’ lawyers confront a less favorable reward structure than in the United States. American plaintiffs’ attorneys operate on a pure contingency fee basis, so patients with strong cases but limited financial resources can obtain representation without the obstacle of a substantial initial payment. Japanese patients, by contrast, must pay a substantial up-front retainer to the attorney and a filing fee to the court based on the amount claimed, which together typically amount to the yen-equivalent of several thousand dollars. Furthermore, the US attorney’s standard contingency fee typically starts at one-third of the ultimate recovery (if any) plus expenses with the percentage increasing if the case goes to trial and appeal. In Japan, traditionally, the attorney’s fee has been limited to the retainer plus 10% to 15% of the amount collected from the defendants with various adjustments. This difference in plaintiff attorney rewards creates a difference in attorneys’ case screening philosophies. A case involving high preparation expense, uncertain chance of success, but large potential damages might be accepted by a US plaintiff’s firm but refused by one in Japan, both making decisions in accordance with rational calculations of probable returns to the firm.

A second reason for the scarcity of malpractice actions has been delay in case resolution. In Japan, like in most nations other than the United States, cases are presented to judges rather than juries. Hearings are spaced out over months or even years rather than concentrated in a single trial. A panel of three judges determines the facts, decides whether medical personnel were negligent and whether any negligence was the cause of harm, and assesses the patient’s injury. Before recent reforms, medical trial proceedings tended to be protracted with a mean duration from filing to resolution of 3½ years in 1994 and some notorious cases lasting more than 20 years. Medical cases were proverbially likened to rain in June: “One never knows when it will end.” These delays discouraged the filing of even meritorious cases and engendered public criticism of the quality of the judiciary’s handling of medical claims.

In assessing damages, judges typically refer to a schedule of awards used in traffic accident cases. The range of discretion in setting the amount of damages is far less than that afforded American juries under headings such as “pain and suffering.” Thus, knowing the nature of a patient’s injury, experienced Japanese attorneys can estimate with considerable accuracy the likely award if the defendant is found negligent. This predictability of damages aids pretrial settlement of cases. So does the practice of many judges of privately discussing with attorneys the judges’ tentative views of the strengths or weaknesses of their cases, effectively informing each side’s negotiating positions between trial sessions. Occasionally, settlement negotiations are complicated by patients’ insistence on apologies, which many physicians are loath to give.

Like in the United States, expert testimony is critically important; but in addition to experts testifying for plaintiffs and defendants, Japanese judges often select experts who are not beholden to either party. On the whole, taking into account the judicial process described and its results, Japanese physicians appear to be less skeptical of the judicial system’s ability to arrive at results acceptable to them than are most of their US counterparts.

Malpractice liability premiums in Japan are lower and more stable than in the United States. Premiums in Japan do not vary depending on the physician’s specialty or geographic area of practice. In effect, there is a nationwide risk pool for all physicians in private practice, covered by the Japan Medical Association (JMA) indemnity insurance system, and the majority in low-risk practices subsidizes the relatively few doctors in high-risk specialties. Although increases in medical litigation have recently inflicted losses on the JMA system and forced premium hikes, the rates for individual physicians are still moderate by US standards; annual premiums climbed in 2003 from only ¥55,000 (US $500) prevalent in the 1990s to only ¥70,000 (US $640). Premiums for hospitals, too, are moderate: roughly ¥30,000 (US $270) per bed per year. Most physicians are hospital employees, rather than private practitioners, and their potential civil liability is in effect covered by these hospital-paid premiums.

Japanese patients file relatively few medical malpractice claims. Most scholars, as I have, try to explain this phenomenon by identifying “faults” in the Japanese judicial system. However, the faults we have identified others say do not exist. Instead, a substantial part of the reason for the malpractice claiming patterns others point to may lie in the national health insurance system. In order to contain the cost of this system, the government suppresses the price it pays for the technologically most sophisticated procedures. Predictably as a result, Japanese doctors have focused instead on more rudimentary care. Yet, for reasons common to many societies, Japanese patients are less apt to sue over rudimentary care. They are more likely to sue over sophisticated care. In part, Japanese patients may bring relatively few malpractice suits because the government has (for reasons of cost) suppressed the volume of the services (namely, highly sophisticated services) that would otherwise generate the most malpractice claims.

In Japan, as was pointed out before, members of the Japanese Medical Association, which represents about 40 percent of the country’s physicians, obtain insurance through a large insurance pool. Private physicians obtain medical liability insurance through the marketplace, but insurance is not required and because of the large insurance pool the cost of insurance is very low and acceptable in comparison to the U.S. malpractice insurance cost, which can cost as low as $25,000 to as much as $125,000.

Most Japanese physicians earn their income from outpatient care, not surgical procedures or inpatient medical care. Even though the surgery rate in Japan is roughly a quarter of that in the United States, a large percentage of malpractice costs are attributable to surgical procedures.

A study by the Institute of Medicine found that the number of errors and reportable events in Japan was nearly equal to those in the United States. Patients pursuing claims must initially go through a binding mediation process. In certain situations, however, patients may still seek redress through the courts. In Japan, injuries or deaths due to medical error are frequently treated as criminal matters that may result in the arrest and a jail sentence for the physician.

Untitled.14Japanese medical malpractice civil cases filed in court increased from 1976 to 2007. (Source: Supreme Court of Japan, Administrative Office.)

Although malpractice claims in Japan have increased tenfold in 25 years, the number of new claims per population is still dramatically lower than in the United States. This variance is often attributed to Japan’s healthcare structure, its social system, and legal barriers that discourage lawsuits.

Societal norms also may play a role in the rise of malpractice suits in Japan. The country has experienced an across-the-board erosion of trust in Japanese professionals, including medical personnel. In addition, awareness of patient rights, including the right to be compensated in the case of medical error, is on the rise in Japan. Over the past 15 years, contingency fees have become the norm, filing fees have been reduced, and the court system has been streamlined. The effect of these changes has been to make it easier to file malpractice claims.

How about the cost of education in the U.S? We know that in the U.S. the cost ranges from $170,000 to $325,000 and involves a pre-medical study period of 4 years and 4 years of medical school. How about the Japanese system?

There are 79 medical schools in Japan–42 national, 8 prefectural (i.e., founded by a local government), and 29 private–representing approximately one school for every 1.6 million people. Undergraduate medical education is six years long, typically consisting of four years of preclinical education and then two years of clinical education. High school graduates are eligible to enter medical school. In 36 schools, college graduates are offered admission, but they account for fewer than 10% of the available positions. There is no specific 4 year Pre Med program in Japan as typically found in North America, but in their first two years Japanese medical students focus on General Education (Kiso Kyouiku- including English classes, humanities etc.) but begin to gradually focus more on applied sciences (anatomy, biology, physiology, histology) before eventually moving into more and more specific medicine-based classes by the time they reach 4th year.

In their 5th and 6th years they go through most or all-individual departments in the attached university hospital under the tutelage of practicing professors/physicians. They have to attend departmental conferences, relevant lectures, participate in research studies, and carry out report writing during this time as well. In many Japanese medical schools this is called Porikuri (Poly Curriculum) and/or kurikura (Clinical Clerkship). This practicum typically extends to other locally affiliated hospitals too.

Then all freshly graduated doctors are required to partake in a two year trainee (kenshu-i) program. They will choose a small number of departments that they want to get a feel for (as a doctor now, not as a student) and spend two years doing the rounds and learning the ropes (typically 4-6 months) of each department.

National universities like Miyazaki U. are heavily subsidized and fees are relatively low and therefore less of a factor for the not-so-well-to-do. It is very interesting that a fair number of med students have parents in the medical profession.

A model core curriculum was proposed by the government in 2001 that outlined a core structure for undergraduate medical education, with 1,218 specific behavioral objectives. A nationwide common achievement test was instituted in 2005; students must pass this test to qualify for preclinical medical education. It is similar to the United States Medical Licensing Examination step 1, although the Japanese test is not a licensing examination. The National Examination for Physicians is a 500-item examination that is administered once a year. In 2006, 8,602 applicants took the examination, and 7,742 of them (90.0%) passed. A new law requires postgraduate training for two years after graduation. Residents are paid reasonably, and the work hours are limited to 40 hours a week. In 2004, a matching system was started; the match rate was 95.6% (46.2% for the university hospitals and 49.4% for other teaching hospitals). Sustained and meaningful change in Japanese medical education is continuing.

Remember also that the “total education time” required to train a medical doctor in Japan is only 6 years, which also saves money. It is interesting that a number of schools here in the U.S. are trying this program. For example a growing percentage of medical students came through a humanities-oriented program at Mount Sinai known as HuMed. As undergraduates, they majored in things like English or history or medieval studies. And though they got good grades, too, they didn’t take the MCAT, because Mount Sinai guaranteed them admission after their sophomore year of college and therefore they could graduate primary care physicians in 6 years instead of 8.

So, that next question, although the Japanese health care system has many advantages, will it be sustainable?

Next week I will present an evaluation of their system for sustainability.

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