Suing Doctors in Japan
Structure, Culture, and the Rise of Malpractice Litigation
ERIC A. FELDMAN
This chapter examines conflict over medical malpractice claims in Japan, and uses it as a lens through which to view the relationship between tort law and its social, economic, and political context. Allegations of medical malpractice in Japan have been rising rapidly. What explains the increasing willingness of people who believe that they are victims of medical malpractice to sue? And what (if anything) does the upswing in malpractice litigation suggest about the changing role and importance of the legal system in the lives of the Japanese people?
The relationship between law and society in Japan has long been the source of scholarly speculation, and occasionally the topic of serious academic analysis (Cole 2007; Feldman 2007). The two most widely held points-of-view are dramatically different. One suggests that Japanese culture (rarely defined but generally assumed to encompass social values, norms of behavior, and modes of interpersonal interaction) places a high premium on the preservation of social harmony and the avoidance of open conflict (Kawashima 1963). In that view, the language of law is subordinate to the power of social integration and leads people to forego lawsuits. The other explanation for Japan's low litigation rates posits a more structural cause; namely that the elite has created barriers to inhibit access to the legal system and limit the extent to which courts can be a potent force of social change (Haley 1978; Upham 1987). Among the most important of those barriers are constraints on the number of licensed attorneys, the imposition of high case filing fees, a slow and costly civil litigation process, and limited damage awards (Haley 1978).