Penal Law Dimensions of Medical Malpractice in Japan
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This report discusses Japan's criminal law regarding medical eror and points out problems that need to addressed. Allegations of medical malpractice have been relatively rare in Japan, in part perhaps because of an imbalance of power in the doctor/patient relationship. Those who complained rarely prevailed. Awareness of such problems, however, has been growing, and the law has started to respond. Nowadays, in fact, overzealous criminal prosecution of medical error has developed. For example, in both the Ono-Hospital case and the Kyorin-Hosipitalcase, the defendants were acquitted. They undertaken difficult operations that ultimately were not successful. Not suprisingly, the medical profession is critical of such prosecutions, saying they discourage physicians from providing appropriate treatment. Especially in emergency situations, when a consent form has not been signed, medical personnel may be reluctant to do all that they could, for fear of being subjected to legal action later. On the other hand, the recognition of victims' rights has been increasing in Japan along with the punishment of offenses that arise from negligence. Medical error cases fir within this framework. A decision to prosecute may arise after investigation by professional prosecutors or by inquest committees made up of ordinary citizens. The latter method increases the likelihood of physicians being subjected to court procedures and arduous cross-examination. Considering the substantial amount of energy spent on a search for responsibility and efforts to make error decrease through deterrence, it seems important to get back to basics: ezaminating an alleged offense involving negligence and confirming the principle of responsibility through punishment. Even so, society needs to be attentive to any tendency to overreach in subjecting medical personnel to criminal law. The legal formation of a crime of involuntary wounding and manslaughter through negligence is indefinite, and the characteriztion of a doctor'sresponsibility is probelematic. In a notorious case involving use of HIV-tainted blood products, the physicians were found innocent based on a consideration of "the ability of the actor". This decision has been criticized. Nevertheless, it illustrates how a legal formation of the offense of involuntary wouding and manslaughter through negligence has become important judging the propriety of the actions of medical professionals.
比較法雑誌 46(3), 233-241, 2012