Der Beitrag des japanischen Arzthaftungsrechts zur Qualitätssicherung in der medizinischen Behandlung

Abstract

Japan is commonly renowned for its high standards in quality and quality management. In the medical sector, however, this seems to apply only to a certain extent: Despite Japan’s reputation of having one of the world’s best healthcare systems, until quite recently only limited efforts were made to systematically evaluate and improve the quality of medical treatment. Especially with regard to medical malpractice it has been common to cover up critical cases, thus making it systematically impossible to learn from mistakes and to improve the system with regard to eliminating malpractice.

In Japan, medical malpractice law as an external instrument of quality control has been largely ineffective due to the difficult institutional conditions of the judicial system on the one hand and an insufficiently developed case law on medical malpractice on the other. However, this situation is currently undergoing significant change on the institutional level as well as on the level of medical malpractice law, jolted by the occurrence of some outrageous medical malpractice cases, patients’ rights movements and a rise in medical malpractice suits.

 The article examines the relevant factors of the Japanese healthcare system and the design, development and application of medical malpractice law to assess if and how Japanese medical malpractice law can contribute to ensuring quality in medical treatment. For this purpose, medical malpractice law is analyzed in the context of other factors potentially relevant to the quality of medical treatment, like, e.g., the overall situation of the Japanese healthcare system, institutional efforts of quality assurance, and efforts of quality improvement. The goal is to assess the prospects and limits of medical malpractice law for ensuring quality in medical treatment as a whole.

The article comes to the conclusion that in the light of other problems the Japanese healthcare system is facing, medical malpractice law can only make a limited contribution to ensure quality in medical treatment – although considerable progress can be seen in medical malpractice law, including facilitated access to courts and attorneys, shifts in the burden of proof in favor of the plaintiffs (the patients), the creation of brains trusts and specialized court chambers as well as an increased emphasis on patients’ rights.