Obstacles to Reducing Human Injury and Death Due to Medical Error

University of Arkansas law professor Robert B Leflar

As a matter of policy, both the United States and Japan try to reduce occurrences of human injury and death due to medical error. Health officials in both countries realize that to develop any successful quality-improvement program to address this problem, they must obtain accurate information on the nature, frequency and cause of medical errors.

Robert B Leflar, a law professor at the University of Arkansas, says both nations struggle with this problem because obtaining information about mistakes by healthcare providers creates serious tension between the equally important goals of patient safety and public accountability. In the United States, civil malpractice litigation has become so fierce that hospitals regard internal hospital information, obtained for the purposes of quality improvement, as a source of legal liability and thus want to protect it from reaching potential plaintiffs attorneys.

Leflar, who is also an adjunct professor at the University of Arkansas for Medical Sciences and formerly a visiting professor at the University of Tokyo School of Law, spent the 2005-06 academic year in Tokyo studying how people and institutions in that country deal with medical error. He discovered that the Japanese approach is dramatically different from U.S. methods, and he says both countries have much to learn from each other. Leflars recently published article on the topic is titled, Medical Error as Reportable Event, as Tort, as Crime: A Transpacific Comparison.

Leflar found that a major difference between the two countries is the type of law used when a patient is injured or dies because of a healthcare professionals mistake. In the United States, legal action as a result of a medical error is almost always treated as a civil matter, a dispute between two parties. If one has reason to believe that a family member died because of error or negligence, the family hires an attorney who will use tort law, specifically medical malpractice law, to pursue a case against the healthcare provider or hospital in which the error allegedly occurred. In Japan, injury or death due to medical error is often treated as a criminal matter. When medical error causes injury or death, patients or their family members call the police to investigate the incident. Arrests and prosecutorial decisions are based on results of investigations. In other words, medical error in Japan is considered a crime against the state.

In the United States, errant physicians and hospitals fear malpractice lawyers, Leflar said. In Japan, the greater concerns are whistleblowers, the media and the police. Japanese aggrieved by perceived medical error tend to call the police and try to get a prosecutor involved.

Leflar found that Japanese prosecutors have several legal weapons in medical cases that are not available to American prosecutors. For example, a standard charge used against medical personnel under the Japanese Criminal Code is professional negligence causing death and injury, a crime not found in U.S. statute books. Secrecy surrounding medical error has been a problem in both countries, but even more so in Japan. Thus, the latters criminal code also contains sanctions for attempts to cover up mistakes by altering patients charts.

Leflar said that in comparing the two countries, a greater convergence of objectives -- including compensation, a sincere apology, discovering the truth about what happened and sometimes revenge -- between prosecutors and victims in Japan may explain why medical-error victims there appear more likely to seek criminal prosecutions.

But a lack of accountability mechanisms in the Japanese healthcare industry appears to be a stronger explanation for the criminal-law preference. In the United States, medical accountability is strengthened by peer review, codes of professional ethics -- including that of the American Medical Association -- programs of self-critical analyses as part of the hospital accreditation process, and fear of civil litigation. Leflar found that although some Japanese hospitals are more frequently reporting medical errors on a voluntary basis, the absence of these accountability mechanisms means they are not compelled to do so.

In Japan, the weakness of peer review and professional discipline structures, the lack of mandatory hospital accreditation and the absence of objective, hospital-by-hospital statistics on outcomes of medical treatment -- not to mention the relative infrequency of civil malpractice litigation -- enhances the social importance of criminal law as a way of increasing transparency in the medical world, Leflar said.

Few Japanese officials would argue that police and prosecutors are ideally suited for the role of medical quality control, Leflar said, but the weakness of other structures has forced them into that role. As an alternative, Japans health ministry has developed an innovative model project in which independent and neutral groups of medical specialists investigate medical accidents. Their goal is to obtain facts and reach conclusions in a much more timely, less expensive and perhaps more accurate and objective fashion than the legal system allows.

If the Japanese project succeeds, Leflar said, American reformers seeking to link patient safety and improvement of the medicolegal dispute-resolution system may find the Japanese approach instructive.

Other initiatives and practices in Japan could inform health practices and policies in the United States, Leflar found. Most American physicians, especially those in high-risk specialties such as obstetrics and neurosurgery, are keenly aware of the connection between medical liability insurance premiums and the volume of both insurance claims and medical malpractice lawsuits. American physicians argue that premiums have risen to unsustainable levels. In Japan, malpractice liability premiums do not vary depending on specialty or geographic area, and, overall, Japanese physicians pay much lower premiums.

The Japanese system of nationwide risk pooling of medical liability insurance may stabilize the harmful volatility of liability premiums in the United States, Leflar said. From the standpoint of efficiency, cost spreading and stability, there is much to be said for the Japanese medical liability insurance approach.

Leflar will present his research results in Shanghai, China, on Dec.14 at an international symposium on health issues sponsored by the Shanghai Academy of Social Sciences.

Source: University of Arkansas, Fayetteville