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Limit of Criminal Responsibility of Doctor and Judgment of Medical Accident in Fukushima Prefectural Ono Hospital Incident

Katsunori Kai,
Professor, Waseda Law School, Waseda University (Criminal Law & Medical Law)

An obstetrician-gynecologist was arrested because during cesarean section surgery he carried out mazolysis (detachment of placenta) that resulted in the death of the patient. on August 20th, in its judgment at the first trial concerning the Fukushima Prefectural Ono Hospital incident, which shook the medical world, Fukushima District Court issued a verdict of "Not guilty." This conclusion itself was the expected one and is considered an appropriate judgment. On August 29th, Fukushima District Public Prosecutors' Office decided not to appeal this case. This is also an appropriate judgment. Fukushima District Public Prosecutors' Office is assumed to have decided that even if they did appeal, they could not produce evidence to reverse the conclusion reached in the first trial. If they appealed, confusion at the actual site of medical treatment and the downscaling of medical treatment would be likely to continue.

5 trends in criminal & medical malpractice judicial precedents

After analyzing criminal & medical malpractice judicial precedents in the past ten years, from the 1999 incident involving mistaken patient identity at Yokohama City University Hospital, to the current case, I can point out the following trends. First, the pursuit of responsibility for mistakes is shifting from the "individual model" to the "organization model." Due to this, there is a tendency for the scope of punishment of persons in the medical profession, involved in the chain of cause and effect, to expand because the "concurrent negligence" theory has been widely adopted, as shown by the typical example of the Supreme Court decision regarding the Yokohama City University Hospital patient mistaken identity incident (Supreme Court Decision March 26, 2007, Keishu Vol. 61, No. 2, P.131). Second, new theoretical development can be seen in the "duty of care" theory of offence by negligence, and in intentional obligation (recovery obligation) theory concerning non-authentic crimes of omission, through the series of judicial precedents regarding the HIV-tainted blood scandal. In particular, the duty of care by the responsible persons (doctors, enterprise executives and government officials who own the latest information) who have real authority has begun to be considered more important. Third, sentencing is becoming heavier. This affects the severity of administrative measures applied to persons working for medical treatment. Fourth, remedies for the victims of medical accidents, and the improvement of medical quality and safety, have been advocated, and the investigative authorities have shown a positive attitude in response. The present Ono hospital incident can be positioned here. Fifth, as a measure after a medical accident has occurred, the way to fulfill the "obligation to report a suspicious corpse" stipulated in Article 21, Medical Practitioners Law, which became the focus of the prosecution in the Ono Hospital case, is discussed in connection with the ideal way to handle risk management.

"Gross negligence" or not

When a medical accident has become a criminal case, the strength of its impact (including the extent of mass-media reporting) on the actual site of medical treatment is much greater than that of a civil case, in every stage from the investigation by police (the recent case in which police arrested a medical practitioner is typical), sending the police report to the public prosecutor's office, through prosecution and trial, to judgment. (P. 2)

Because the term "Gyomujo"(professional) is used in the regulations concerning "charges of professional negligence resulting in death and injury" in Text 1 of Clause 1, Article 211, Criminal Law of Japan, if a case is incorporated into the category of "professional negligence", there is a tendency to impose the obligation to provide a high level of care. Recently, however, we have seen very few countries passing this kind of regulation. Rather, the regulation of "gross negligence" in Text 2 of Clause 1, Article 211, Criminal Law of Japan, essentially means that judgment should be made mainly on whether or not the concerned act is "gross negligence" (gross negligence). And the key points of the standards for distinguishing between gross negligence and minor negligence will be whether or not the negligence is rudimentary negligence, and whether or not the negligence is reckless negligence involving obvious concrete danger. If the latter is confirmed, there will be punishable responsibility for the concerned act of negligence. In other words, the duty of care is not determined uniformly from an objective viewpoint. Whether or not there is recognition of concrete danger (prediction of the occurrence of a result) is an important point. Based on this assumption, the existence of concrete predictability of the result (and confirmation of the existence of violation of the duty of care based on this) will be judged with reference to the medical treatment level at the time and the judgment will include the consideration of subjective aspects. When the substance of the accusation of responsibility is elucidated, the separation of criminal negligence from civil negligence will naturally be clarified. At that stage, I suggest that the classifications "willful negligence" and "negligence without recognition" should be used, and that the latter should be handled as civil responsibility. In the case of treatment by a medical team, there is room to consider the "principle of reliance." In short, the "appropriate punishment of a crime of negligence based on the principle of culpability" is an important key. Also, the criminal code is considered to be the "last step" for medical problems. In future we need to carefully re-study the duty of care by the examination of cases concerning persons involved with medical treatment, and we must establish proper duty of care and medical treatment levels.

"Law does not force people to do impossible things."

In this case, we cannot say that the doctor remarkably deviated from the standard level of medical treatment and the duty of care concerning mazolysis for placental adhesion which is an extremely rare occurrence , so that charging the doctor with criminal responsibility was too harsh. In consideration of the actual situation of the doctor concerned, the saying that, "The law does not force people to do impossible things" becomes important.

Finally, it is also necessary to promote system theory research toward the construction of a early-cause-investigation type of medical affairs judgment system and a medical accident victim aid type compensation system. Of course, the task of selection of which settlement route should be taken will remain. The HDC (Healthcare and Disability Commissioner) and ACC (Accident Compensation Corporation) systems in New Zealand can provide useful data, although further study based on legal comparative studies is also needed. (See Katsunori Kai, "Theory of criminal medical malpractice and duty of care" Medical Jurisprudence Annual Report No. 23 (2008) p. 93ff., Katsunori Kai "Medical accidents and relief of victims in New Zealand" Comparative Jurisprudence (Waseda University) Vol. 42, No. 1 (2008) p. 79ff.).

Katsunori Kai/Professor, Waseda Law School, Waseda University (Criminal Law & Medical Law)

(Academic career)
March 1977 Graduated from Faculty of Law, Kyushu University
March 1982 Fulfilled requirements of doctoral course, Kyushu University Law School

(Employment)
April 1982 Assistant, Faculty of Law, Kyushu University
April 1984 Full-time lecturer, Japan Coast Guard Academy
April 1987 Assistant professor, Japan Coast Guard Academy
April 1991 Assistant professor, Faculty of Law, Hiroshima University
April 1993 professor, Faculty of Law, Hiroshima University
October 2002 (Received doctoral degree?) (Jurisprudence)(Hiroshima University)
April 2004 Professor, Waseda Law School, Waseda University (to present)

(Official positions)
Director, Criminal Law Society of Japan
Director, Japanese Association of Medical Law
Director, Japan Association for Bioethics

(Major writings)
1.Arthur Kaufman "Responsibility principles - criminal & philosophical studies -" (translation) (2000, Kyushu University Press)
2. "Maritime transportation crime research" (2001, Seibundo)
3."Euthanasia and criminal law" (2003, Seibundo)
4."Death with dignity and criminal law" (2004, Seibundo)
5."Travels in medical criminal law I" (2004, Modern legal publication)
6."Responsibility principle and negligence crime theory" (2005, Seibundo)
7."Examinee protection and criminal law" (2005, Seibundo)
8. "Travels in medical criminal law I (new edition)" (IUSU publication)
9."Genetic information and legal policy" (author & editor) (2007, Seibundo)
10."Corporate crime and compliance program" (coeditor) (2007, Commercial Law Center, Inc.)
11. "Bridge book: medical jurisprudence" (author & editor) (2008, Shinzansha)
12. "International trends in corporate activity and criminal regulations" (coeditor) (2008, Shinzansha)
13. "Corporate activity and criminal regulations" (Written and edited) (2008, Nippon Hyoronsha)
14. "Life science and law" (coauthor) (2008, Shogakusha)
15. "End-of-life care and bioethics" (coeditor) (2008, Taiyoshuppan Co.)