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Obstacles to Reducing Human Injury and Death Due to Medical Error

malpractice law, to pursue a case against the health-care 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 latter’s 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 health-care 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--program
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