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Widener Commonwealth Law School

Thursday, January 1, 2009

Two By Leflar

Just in time for the AALS panel on Foreign Tort Law Beyond Europe, Robert Leflar (Arkansas) has posted on SSRN two pieces about regulating the Japanese medical profession.  First up is The Regulation of Medical Malpractice in Japan.  Here is the abstract:

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.

Next, we have 'Unnatural deaths,' Criminal Sanctions, and Medical Quality Improvement in Japan.  Here is a portion of the abstract:

This Article explains the significance in Japan, hitherto little noticed elsewhere, of criminal law in regulating medical practice. The Article offers reasons of law and social structure for criminal law's role in Japanese medicine, reasons stemming in large part from the weakness of other institutions for oversight of medical quality: Japanese medicine's accountability vacuum. The requirement that physicians notify police of "unnatural deaths" is then explored - a requirement made controversial because of its interpretation by the Supreme Court of Japan to apply not only to deaths from violent crime, natural disaster and suicide, but also to deaths potentially caused by substandard medical care. This police notification requirement, taken together with Criminal Code sanctions of "professional negligence causing death or injury," has sometimes turned Japanese hospitals into crime sites, and doctors and nurses into suspects in death inquiries. The specter of criminal liability has provoked a counter-reaction from the medical world analogous to the movement for medical "tort reform" in the United States.


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