From 1998 to 2008, patient deaths reported to the police by physicians increased to a statistically significant extent. The number of prosecutions also increased to a statistically significant extent. While the primary aim of our study was to determine if reporting and prosecutions have increased over the study period, careful inspection of the time series shows a rapid increase in both reporting and prosecution rates beginning in 2000 and extending through 2004, followed by a leveling off at what appears to be a new steady state. To our knowledge, there were no particular events around 2004 that would explain these results; perhaps the police, prosecutors, and courts reached their case load limits. Nonetheless, we have demonstrated that physicians are reporting to the police more and healthcare professionals are being prosecuted more.
The reason physicians are reporting more is likely multi-factorial. The 21st Article of the medical practitioner's law requires physicians to report to the police if there is an "unnatural death". Because the media has widely covered the Hiroo case and other similar cases, physicians have become familiar with this legal reporting requirement. Fear of prosecution under this law is often cited as the reason for the increase in physician reporting. Undoubtedly fear motivates some physicians to report to the police. But it is also possible that other reasons contribute. Physicians could simply desire to be "good citizens" and comply with the law, therefore reporting more often. Bereaved family members may pressure physicians by threatening to go to the police if physicians do not report. Hospital administrators may also have protocols in place that require physicians to report as a safeguard to avoid media attention and a tarnished reputation should non-compliance with the law be made public.
Unlike physicians, next-of-kin and others are not reporting more. It has been generally assumed that reporting by patient next-of-kin has increased following widespread media coverage that spurs public outrage surrounding medical error , and that this in turn has fueled physician prosecutions. Granted, people face significant barriers to pursuing civil litigation in Japan, such as high start-up costs, lengthy trials, and low chance of success . In this light it seems plausible that, left with no other avenue of recourse, bereaved family members may be forced to pursue criminal litigation. However, our research does not support this assumption as the number of reports made directly by next-of-kin has not increased to a statistically significant degree since 1998. Of course, it is possible that family members indirectly cause physicians to report more by threatening to go to police themselves.
Because reporting by physicians has increased while all other reporting has remained constant, the increase in physician reporting likely fuels the increase in prosecutions. However, two things make the true cause difficult to decipher. First, the reports in a given year and the prosecutions in a given year are not necessarily directly related given that the statute of limitations allows for prosecution up to five years following report. Second, it is unknown what fraction of prosecutions results from physician reports vs. next-of-kin or other reports and therefore if the source of the report is associated with the likelihood of prosecution. Nevertheless, because the total number of prosecutions is greater than the number of reports by next-of-kin or others combined, it is clear that the physician reporting has played a large part in the rise in prosecutions. Even if one were to assume that 100% of reports made by next-of-kin and others resulted in prosecution, this could not account for the increase seen in prosecutions.
This rise in prosecutions is significant because a large number of prosecutions have resulted in criminal trial and conviction. According to data from the Public Prosecutors Office , 23% of the cases sent for prosecution of medical error eventually resulted in criminal trial (5% full trials, 18% summary trials). Whenever a case goes to trial, it is likely to end in conviction as the conviction rate in Japan for any criminal offense is known to be high compared to the rest of the world. Reasons for this may include public prosecutors only pursuing cases that are sure to bring conviction, acquittal having a negative impact on the careers of judges, and Japan lacking an impartial jury system . Conviction rates specifically in cases of medical error are 90% or above (physicians, 93%, nurse 90%) . Given these data, one can predict that of the roughly 100 cases sent for prosecution per year, 23 will lead to trial and 21 to conviction.
Japan is not only unique in its high conviction rates but also that gross negligence or deviation from standards of care have not been consistent elements in prosecuted cases. To be sure, prosecution of medical error occurs in other countries . Between 1975 and 2005 in the United Kingdom, 44 physicians have been criminally prosecuted and 14 were convicted. Roughly 25 cases from 1982 to 2001 in the United States were prosecuted . However, these cases typically have involved extreme negligence, such as an intoxicated surgeon killing a patient . In contrast, the high profile 2004 Ono Hospital case is one example of many sent for prosecution despite no evidence of negligence. In the case, a patient died following caesarean-section complicated by hemorrhage related to placenta accreta. The physician involved was arrested and prosecuted for the patient death because he did not immediately perform a hysterectomy. He was later acquitted after judges determined he had acted well within accepted standards of care - many factors affect whether hysterectomy would be the most appropriate treatment course .
Because of this and other similar cases, medical providers are adopting defensive medical practices . Physicians are turning away high-risk patients from emergency departments . In thousands of cases per year, patients in ambulance transport are turned away from more than 11 hospitals before being accepted. The most frequent reason cited for refusal is not lack of physicians but "difficulty of treatment" according to data published by the Fire and Disaster Management Agency . Pointing to the inherent unfairness of being prosecuted for providing routine medical care having undesirable outcomes, physicians are lobbying the government to intervene.
The Ministry of Health, Labor, and Welfare responded in 2008 by introducing a proposal for a new "third party" system that would replace the Article 21 requirement to report patient death to police . In place of the current system, physicians would be required to report to an official arbitration body called the "Medical Safety Investigation Committee," composed of pathologists, internists, lawyers, patient advocates, etc. Following autopsy and investigation, the committee would make an official report with the aim of reducing medical error in the future. The committee would also forward the cases with elements of gross negligence or deviation from standards of care to the police for criminal prosecution. Whether this plan will be adopted or not remains to be seen. On separate fronts, organizations like the Japan Council for Quality Health Care are requiring accredited hospitals, including all government supported hospitals, to anonymously report physician errors leading to patient harm, death or otherwise, in order to improve patient safety .
Our research clarifies the trends in reporting and prosecution rates but does not provide any concrete information about why this change has occurred, the risk factors associated with reporting or prosecution, or whether this change is beneficial or harmful to patients or physicians. Future research should clarify these points.