The Use of Experts in Medical Malpractice Litigation in Japan

Abstract

In medical malpractice litigation, the cooperation of medical experts is important. However, the appointment of experts has become problematic in Japan, apparently because many medical experts refuse to act in this capacity. However, this supposition has not until now been supported by quantitative evidence, since the fact that so few judgments in Japan are published made it impossible to investigate the situation. Therefore, we aim to show the state of the use of experts in medical malpractice litigation using objective data.

Over the last ten years, the rate of the use of experts has averaged only 22.5%, varying according to region. Experts were used in 24.5% of cases involving an attorney on the patient's side, and in only 3.4% of cases where no attorney was used. The success rate of patients was higher when experts were adopted (39.1%) than when they were not (29.9%). The length of litigation involving experts was 4.0 years, and 2.7 years when no expert was involved.

This research suggested the necessity of establishing a formal cooperation system as soon as possible in Japan with no regional maldistribution.

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References

Aeba

(1987) Practicing Physician's Viewpoint (“Expert Testimony in Medical Law Suits”) (Ishikai rinshoui kara (Iryousoshou to kantei)). J. Med. Law 2, 54–63

Cole

(1991) The epidemiologist as an expert witness. J. Clin. Epidemiology 44 Suppl 1, 35S–39S

Donaldson

Kaplan

Leung

W. C.

(1999) The Medical Expert Witness: Time to regulate conflicts of interest. Med. Sci. Law 39(1), 11–16

Maeda

(2000) The management in civil litigation needed specialized knowledge (Senmonteki na chiken o hitsuyou tosuru minjisoshou no unnei). The precedent times (Hanrei taimuzu). 1018, 6–9

Maeda

(2000a) General theory of medical law (Houritsugakugairon), Tokyo, Japan Medical Association Research Institute, pp. 31–47

Maeda

(2000b) The prevention of medical malpractice litigation: Post-dispute activity (Iryoukagosongaibaishouseikyusoshou no boushi: Funsouhasseigo no sagyou no siten kara). In: Maeda

A theory of dispute and litigation prevention (Funsou soshou boushiron), Tokyo, Japan Medical Association Research Institute, pp. 55–85

Maeda

Sakamoto

Nobutomo

(2001) The Problems of Medical Malpractice Litigation in Japan: The significant factors responsible for the tendency of patients to avoid litigation. Legal Med. 3(1), 54–62

Mori

(1998) Science trial and Expert opinion (Kagakusaiban to kantei). In: Nakano

Science trial and Expert opinion (Kagakusaiban to kantei), Tokyo, Nihonhyouronsha, pp. 110–20

Motoi

(1987) Trial Judge's Viewpoint (“Expert Testimony in Medical Law Suits”) (Saibanshoga-wa kara (Iryousoshou to kantei)). J. Med. Law 2, 64–72

10.

Nishiguchi

(2000) Medical malpractice litigation and Medical Expert Witness (Iryoukagososhou to kantei). In: Oota

Medical malpractice litigation Law (Iryoukagososhouhou), Tokyo, Seirinshoin, pp. 509–23

11.

Wada

(1997) Theory of civil dispute settlement (Minjifunsoushoriron) Tokyo, Shinzansha, pp. 1–22

12.

Yoshikawa

(1998) Litigation action in medical malpractice litigation (Iryoukagososhou niokeru soshoukatsudou). In: Asai

Sonoo

A Survey of Contemporary litigation law 7 (Gendai saibanhoutaikei), Tokyo, Shinnihonhouki, pp. 15–30

13.