The Use of Experts in Medical Malpractice Litigation in Japan

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1 2 Med. Sci. Law (22) Vol. 42, NO.3 The Use of Experts in Medical Malpractice Litigation in Japan NORIKO SAKAMOTO Department of Health Services, Management and Policy, Kyushu University Graduate School of Medicine, Fukuoka , Japan Medicine and Biosystemic Science, Internal Medicine, Medicine and Surgery, Kyushu University Graduate School of Medical Sciences, Fukuoka , Japan SHOICHI MAEDA Department of Health Services, Management and Policy, Kyushu University Graduate School of Medicine, Fukuoka , Japan NORIAKI IKEDA Department of Forensic Pathology and Sciences in Kyushu University Graduate School of Medicine, Fukuoka , Japan HIROMI ISHIBASHI Medicine and Biosystemic Science, Internal Medicine, Medicine and Surgery, Kyushu University Graduate School of Medical Sciences, Fukuoka , Japan KOICHI NOBUTOMO Department of Health Services, Management and Policy, Kyushu University Graduate School of Medicine, Fukuoka , Japan ABSTRACT In medical malpractice litigation, the cooperation of medical experts is important. However, the appointment of experts has become problematic in Japan, apparently because many medical experts refuse to act in this capacity. However, this supposition has not until now been supported by quantitative evidence, since the fact that so few judgments in Japan are published made it impossible to investigate the situation. Therefore, we aim to show the state of the use of experts in medical malpractice litigation using objective data. Over the last ten years, the rate of the use of experts has averaged only 22.5%, varying according to region. Experts were used in 24.5% of cases involving an attorney on the patient's side, and in only 3.4% of cases where no attorney was used. The success rate of patients was higher when experts were adopted (39.1%) than when they were not (29.9%). The length of litigation involving experts was 4. years, and 2.7 years when no expert was involved. This research suggested the necessity of establishing a formal cooperation system as soon as possible in Japan with no regional maldistribution. INTRODUCTION The propriety of the medical treatment is the point of argument in medical malpractice litigation. However, neither the judge nor the litigants' representatives possess the necessary medical knowledge (Aeba, 1987; Wada, 1997; Donaldson et al., 1999; Maeda, 2a). Cooperation from experts in the trial process is therefore indispensable for the sake of all parties (Cole et al., 1991; Maeda, 2b): to assist patients with the extremely specialized litigation process (Yoshikawa, 1998), and to protect doctors and hospitals from groundless actions. In France, for example, the court makes a list of named experts every year, and the judge appoints an expert from this list. Many medical professionals are willing to be registered on the list, therefore the judge has a wide choice when appointing experts in medical malpractice litigation. A similar practice exists in Germany (Maeda, 2). In Japan, however, in contrast to European countries such as France and Germany, there is insufficient cooperation in medical malpractice litigation by medical experts (Maeda, 2). In particular, judges have often

2 Sakamoto et al.: The Use of Experts in Medical Malpractice Litigation in Japan 21 Table I. The object of analysis (cases of medical malpractice litigation). District Court Location (city) Population* Number of cases Sapporo Sapporo Sendai Sendai Tokyo Chiyoda (Ward) Nagoya Nagoya Kyoto Kyoto Osaka Osaka Kobe Kobe Hiroshima Hiroshima Kokura Kitakyushu Fukuoka Fukuoka Kumamoto Kumamoto Total 31 *According to the results of the national census taken in observed that most medical professionals refuse the request of the courts to assist with the use of medical knowledge, with the result that the appointment of experts is timeconsuming (Motoi, 1987; Nishiguchi, 2). However, such observations have not until now been supported by quantitative evidence, since the fact that so few judgments in Japan are published made it impossible to investigate the situation (Maeda et al., 21). Therefore, we aim to show the state ofthe use of experts in medical malpractice litigation using objective data. MATERIALS AND METHOD The objects of analysis and the task of data collection The objects of analysis were 31 concluded cases of medical malpractice litigation decided in the following courts in the 1 years between 1989 and 1998 (brought after 1989). (Cases from Kyoto district court are taken from 1994 onwards). The courts comprise 11 district courts: the seven district courts under the jurisdiction of the eight high courts (Sapporo, Sendai, Tokyo, Nagoya, Osaka, Hiroshima, and Fukuoka (incorporating Takamatsul): the district courts of Kyoto, Kobe, and Kumamoto; and"the branch courts of Kokura (part of the Fukuoka District Court) (Table I). Cases decided in 1998, the last year of the investigation period, were decisions made up to the point where copy permission was given by each court. Decisions passed at Takamatsu district court were not used as data because of the low population of the area: the decisions were correspondingly few in number. Cases were copied with permission from the heads of the courts between May 1998 and October Relevant cases (and case numbers) were taken from lists of medical malpractice cases kept by the district courts. Kyoto district court has only five years worth of records. Application was also made to Yokohama district court, which is located in a city with a population of over 1,,, but permission was not granted due to the vast amount of work involved. At the courts of Sapporo, Hiroshima, Kokura, and Kumamoto, copies of the cases were taken using the courts' own facilities, and at Fukuoka District Court copies were made using the author's own equipment. At other courts, copies were made using the equipment of the Lawyers' Union Facilities. Database creation and analysis The first and second authors created the database. Before working, we had two meetings about the case facts at issue: The date that the dispute was brought, the date that judg-

3 22 Med. Sci. Law (22) Vol. 42, NO.3 ment was passed, the state of acceptance, the use of experts, and the existence of a proxy for the patient plaintiff. Microsoft Excel was used for analysis. RESULTS (1) The rate of the use of the experts. (Table II) The percentage of cases making use of experts over the last 1 years was as low as 22.5%. Furthermore, the rate of use was not currently increasing. (2) Regional trends in the use of experts. (Figure 1) The rate of use of experts over the last ten years was 38.9% in the Hokkaido-Tohoku Area, 14.5% in the Kanto-Shinnetsu Area, 17.6% in the Tokai-Hokuriku Area, 33.3% in the Kinki-Chugoku-Shikoku Area, and 1.8% in the Kyushu-Okinawa Area. (3) The relationship between the appointment of patient's attorneys and the use of experts. (Table II) An expert was employed in 24.5% of cases in which a lawyer was also employed by the plaintiff patient, and in only 3.4% of cases in which no lawyer was employed. (4) The relationship between the use of experts and litigation results. (Table III) The success rate of plaintiffs over the last ten years was 39.1% in cases where experts were used, and 29.9% in cases where they were not. (5) The length of trial times measured, with and without experts. (Table IV) The length of litigation involving experts was 4. years, and 2.7 years when no expert was involved. DISCUSSION The rate of the use of experts. (Table II) Courts have claimed that cooperation from medical experts is hard to obtain in medical malpractice litigation (Motoi, 1987; Mori, 1988; Nishiguchi, 2; In the present research, the percentage of cases making use of experts over the last 1 years was as low as 22.5%. Furthermore, the rate of use is not currently increasing. In France and Germany, for example, the court makes a list of named experts every year, and thejudge appoints an expert from this list. Many medical professionals are willing to be registered on the list, and therefore the judge can readily appoint experts in medical malpractice litigation (Maeda, 2). We therefore conclude that a similar system or a formal system of cooperation should be instituted as soon as possible in Japan. At present, there are a small number of practitioners in Japan who undertake the role of medical expert but not from a neutral standpoint (Maeda, 2b). A formal system would serve to dilute the power of dishonest practitioners. Regional trends in the use of experts. (Figure1) The rate of use of experts over the last ten years was 38.9% in the Hokkaido-Tohoku Area, 14.5% in the Kanto-Shinnetsu Area, 17.6% in the Tokai-Hokuriku Area, 33.3% in the Kinki-Chugoku-Shikoku Area, and 1.8% in the Kyushu-Okinawa Area. The rate of the use of experts was low nationally, and varied according to region. This further emphasized the necessity of establishing a formal cooperation system with no regional maldistribution. The relationship between the appointment of patient's attorneys and the use of experts. (Table II) An expert was employed in 24.5% of cases in which a lawyer was also employed by the plaintiff patient, and in only 3.4% of cases in which no lawyer was employed. The use of an expert was therefore considerably rarer in cases in which no lawyer was employed by the patient than in cases where a lawyer was employed. This can be attributed to the fact that the plaintiffpatient, on whom the burden of proof rests, did not make the necessary request. In Japan, a request by the litigants for expert assistance is a necessary precondition

4 Table II. The rate of the use of the experts. * Year of the decision Total Number of cases Percentage of cases involving expert opinion Total rate (%) (/1) (/5) (1/16) (8/25) (1/25) (9/51) (13/52) (18/55) (11149) (8/28) (69/37) The rate in cases in which the plaintiff (%) tn III l'<" patient employed a lawyer (1) (/3) (1/12) (8/22) (1/23) (9/45) (13/49) (18/52) (11146) (7/26) (68/278) III 3 The rate in cases in which the plaintiff (%) patient did not employ a lawyer (/1) (/2) (/4) (/3) (/2) (/6) (/3) (/3) (/3) (112) (1/29)!a *Based on 37 cases in which it has been possible to discover the detail of litigation results..., Table 1/1. The relationship between the use of experts and litigation results.* " Year of the decision Total rn Number of cases Success rate for the plaintiff patient a. Kr Total rate (%) s:: (/1) (/5) (1/16) (6/25) (7/25) (14151) (23/52) (15/55) (15/49) (1/28) (91137) III ij The rate in cases involving expert (%) a opinion (1) (1) (/1) (3/8) (1/1) (419) (6/13) (5/18) (3/11) (5/8) (27/69) n" The rate in cases not involving expert (%) opinion (/1) (/5) (1/15) (3/17) (6/24) (1/42) (17/39) (1/37) (12/38) (5/2) (641238) a o' Amount of money accepted Mean ::J (1 4 Yen) *Based on 37 cases in which it has been possible to discover the detail of litigation results. ::J ::T c: rn m >< S" s:: r ;:;: co" S' c... III " III I\) w

5 24 Med. Sci. Law (22) Vol. 42, NO.3 ;..., t- o t- e-i C'J co "> co "<l' 1 "> C'1 J.t:i M t- "> "> O"> "> "> "<l' M e-i The Hokkaido-Tohoku Area (38.9%). to "> 1 "> "> 1 C'J C'1 rhe Kinki-Chugoku-Shikoku '\'%: Area 1 "> C'1 C'1 "> 1 C'J "<l' "> C'J "> 1 C'J The Tokai-Hokuriku Area C'J to <Ii "> 1..., (17.6%) "> C'1 M e-i ;3 The Kanto-Shinnetsu Area... (14.5%) C'1 1 "> 1 +l "> C'1 e-i os The Kyushu-Okinawa Area. (1.8%) eli... t:: Q) "> to co Figure 1. Regional trends in the rate of the use of experts. c- O"> e-i,...i til ><..., Q) -e "5 ofthe employment of an expert (Civil Litigation Code of Japan..<::..., "> 1,...i ">... Article 18). This is in marked contrast to litigation in. V > countries in which courts appoint experts based on the judge's " c::: " own decision. I'll "> ;.a s: co,...i ">..., However, the use of experts is an indispensable condition 'j V.!!l for a fair trial. Our research suggests that the employment of -c :9 a lawyer by the plaintiff party is of the utmost importance in m :::l os os e, medical malpractice litigation. m I'll Q) b b E..c m Q) os The relationship between the use of experts and litigation bil..<:: E.... results. (Table III) bil "iii..<:: ' E The success rate of plaintiffs over the last ten years was 39.1% ] >.a".s a in cases where experts were used, and 29.9% in cases where fil >..., s: III.S.S they were not. The considerable discrepancy between these C,. c:::.!3... two figures suggests that the use of experts has become more os 'il os os ' " important for the patient plaintiff. Q) 'C " " t- s: -e os I- However, cooperation from experts in trials can also be ".... 'S. 'S C'J <::...<::. :::.;..<::...,... top. top. important for the medical party. This is because the coopera-..c= e..!!1 tion produces effects which go beyond the results of the i "'.!!It:.!!It:....Q os e, = os individual trials themselves. The result sets standards for s >< Z * future medical practice.

6 Sakamoto et al.: The Use of Experts in Medical Malpractice Litigation in Japan 25 The length of trial times measured, with and without experts. (Table IV) The average length of litigation involving experts is 4. years, and 2.7 years when no expert is involved. Cases where an expert was involved lasted an average of 1.3 years longer than cases in which no expert was used. We therefore suggest that the existing expert system must be improved in order to facilitate faster trials. However, by no means do we recommend avoiding experts entirely, because we think thatjudges who are not familiar with medicine and medical treatment can be helped to deliver fast and fair judgments by examining an expert's opinion. There is a great need to clarify the various causes of the prolongation of litigation by analyzing all the relevant cases. A research topic for the future will be to investigate issues such as whether time is taken up by the actual work of experts itself, or other factors such as the task of appointment. CONCLUSION Our research has shown the state ofthe use of experts in medical malpractice litigation In Japan. The percentage of cases making use of experts over the last 1 years was 22.5%. The rate was 38.9% in the Hokkaido-Tohoku Area, 14.5% in the Kanto-Shinnetsu Area, 17.6% in the Tokai-Hokuriku Area, 33.3% in the Kansai-Chugoku-Shikoku Area, and 1.8% in the Kyushu-Okinawa Area. An expert was employed in 24.5% of cases in which a lawyer was employed by the plaintiff patient, and in only 3.4% of cases in which no lawyer was employed. The success rate of plaintiffs was 39.1% in cases where experts were used, and 29.9% in cases where they were not. The length of litigation involving experts was 4. years, and 2.7 years when no expert was involved. This research suggested the necessity of establishing a formal cooperation system with no regional maldistribution as soon as possible in Japan. The current research has focused on experts. However, cooperation from medical professionals in litigation is necessary on many levels, such as the settlement of disputed issues and the appointment of experts. Even when disputed issues are resolved by people without medical knowledge, an expert opinion may still be relevant, since such resolutions tend not to be appropriate to the disputed issues. Furthermore, even if the fundamental disputed points have been appropriately resolved, it is not easy for a court with no medical knowledge whatsoever to appoint a medical expert. In the future, cooperation from medical professionals in providing many areas of medical malpractice litigation, not only in providing expert opinions, will be needed. ACKNOWLEDGMENTS We thank assistant Prof. A. Hagihara (Department of Health Service, Management and Policy in Kyushu University Graduate School of Medicine) for his general support in the task of data collection. We also thank Prof. Alastair Horne (Kyushu University, Cambridge University) and Miss Jessica Millard (Cambridge University Hospital) for checking our phrasing. REFERENCES Aeba A. (1987) Practicing Physician's Viewpoint ("Expert Testimony in Medical Law Suits") (Ishikai.rinshoui kara (Iryousoshou to kantei)). J. Med. Law 2, Cole P. (1991) The epidemiologist as an expert witness. J. Clin. Epidemiology 44 Suppl 1, S. Donaldson L., Kaplan C. and Leung W.C. (1999) The Medical Expert Witness: time to regulate conflicts of interest. Med. Sci. Law 39(1), Maeda J. (2) The management in civil litigation needed specialized knowledge (Senmonteki na chiken hitsuyou tosuru minjisoshou no unnei), The precedent times (Hanrei taimuzu). 118, Maeda S. (2a) General theory of medical law (Houritsugakugairon), Tokyo, Japan Medical Association Research Institute, pp Maeda S. (2b) The prevention of medical malpractice litigation: post-dispute activity (Iryoukagosongaibaishouseikyusoshou no boushi: funsouhasseigo no sagyou no siten kara), In: Maeda S. A theory of dispute and litigation prevention (Funsou soshou boushiron), Tokyo, Japan Medical Association Research Institute, pp Maeda S., Sakamoto N. and Nobutomo K. (21) The Problems of Medical Malpractice Litigation in Japan: The significant factors responsible for the tendency of patients to avoid litigation. Legal Med. 3(1),54-62.

7 26 Med. Sci. Law (22) Vol. 42, NO.3 Mori Y. (1998) Science trial and Expert opimon (Kagakusaiban to kantei), In: Nakano T. Science trial and Expert opinion (Kagakusaiban to kantei), Tokyo, Nihonhyouronsha, pp Motoi T. (1987) Trial Judge's Viewpoint ("Expert Testimony in Medical Law Suits") (Saibanshogawa kara (Iryousoshou to kanteil). J. Med. Law 2, Nishiguchi H. (2) Medical malpractice litigation and Medical Expert Witness (Iryoukagososhou to kantei), In: Oota Y.Medical malpractice litigation Law (Iryoukagososhouhou), Tokyo, Seirinshoin, pp Wada Y. (1997) Theory of civil dispute settlement (Minjifunsoushoriron) Tokyo, Shinzansha, pp Yoshikawa K. (1998) Litigation action in medical malpractice litigation (Iryoukagososhou niokeru soshoukatsudou). In: Asai T. and Sonoo K. A Survey ofcontemporary litigation law 7 (Gendai saibanhoutaikei), Tokyo, Shinnihonhouki, pp

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