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作为一种应付问题的策略，美国和日本都在试图减少由医疗失误所引起的伤亡。两国的健康组织都认识到要想发展任何有效而高质量计划来解决这个问题，必须对医疗失误的本质、周期以及原因获得正确的信息。

阿肯色州大学的法律教授Robert B Leflar说两国都要解决这个问题是因为获取卫生保健人员所带来的错误信息在病人安全和公共义务这两个同样重要的目标上造成了严重的压力。在美国，市民的医疗失当诉讼变得如此强烈，各医院为了改进治疗质量，开始注意获得国内其他医院的信息。就像一个法律责任的源头，从而想要保证不发生可能出现的诉讼。Leflar他还是阿肯色州大学医学的助理教授，以前还是东京大学法学院的访问学者，他在05-06年间在东京研究那里的人们和公共机构是如何处理医疗失误的。他发现日本采用的办法和美国的存在着戏剧性的差异，并且他还说两国之间还有很多地方可以互相学习。Leflar最近发表的文章主题就是“医疗失误就像可报告事件、民事侵权行为、犯罪：来自太平洋彼岸的比较”。

Leflar发现两国之间的主要差别在于当病人由于专业的健康护理失误而致伤害或者死亡的时候所运用的法律类型是不同的。在美国，作为医疗失误结果的法律行为大多总是像民事事件那样处理，双方不停的争论。如果一方坚信家庭成员死于失误或者疏忽，那么将会聘请律师利用民事侵权行为法，来状告造成失误的医护人员或者医院。在日本，由于医疗失误造成的伤害或者死亡往往是按照犯罪来处理的。当医疗失误导致了伤亡，病人或家属将报警进行调查。并在警方的调查后进行拘留和检举人判决。换句话说，在日本医疗失误被认为是反国家的犯罪。

Leflar说：“在美国，犯错的医生和医院害怕律师。而在日本，更多关心的是揭发者、媒体和警察。日本人在注意到医疗失误时会抱不平，报警并愿意出来做检举人。

Leflar发现日本检举人在医疗事件中有许多法律武器，这在美国是不可用的。例如，在日本用于医疗人员的标准诉讼罪名是“专业疏忽导致伤亡”，而这在美国法令里是找不到的。在两个国家围绕医疗失误的保密都存在问题，其中日本更甚。因此，后者的罪名同样也存在暗示，可以企图通过改变病人的病历来掩盖错误。

Leflar谈到比较两个国家，在日本检举人和受害人之间更关注的目标，包括赔偿、真诚的道歉、发掘真相以及有时是报仇，可以解释为何那里的医疗失误受害人似乎更愿意寻找犯罪诉讼。但是日本的医疗机构缺乏责任，这就有力的证明了选择刑法的原因。在美国，社会舆论包括美国医学协会加固了医疗责任感，并已使其成为了专业道德和畏惧民事诉讼的代号，作为自我评价体系已成为医院鉴定的一部分。Leflar发现，尽管许多日本医院在自愿的基础上频繁地报道医疗失误，但是责任的缺乏意味着他们不是被迫才这么做的。

Leflar还说：“在日本，舆论和专业纪律结构软弱，缺少强制医院鉴定，缺乏目标。医院与医院间在医疗收入上统计比较，并不论及相关的罕见的民事医疗失误诉讼。提高法律的社会重要性已成为医疗界增加透明度的一种手段。”

Leflar表示，少数日本官员可能还会争论，警方和检举人已经完美地迎合了医疗质量控制的角色，但是由于其他组织的软弱蔡强迫他们不得不进入角色的。作为一个选项，日本健康部门开展了一个创新的“模型计划”，由独立而且中立的医疗专家组来调查医疗事故。他们的目的是及时、有效、准确、客观地获得真相、找到结果。他说：“如果日本的计划成功，那么寻找病人安全与发展法医学争论-决定系统之间联系的美国改革家们将发现日本式途径的有益之处。”

Leflar发现，日本其他的主动和实践可以告知在美国这样的实践和政策同样可用。大多数美国医生特别是那些高危险专科，例如产科和神经外科的医生都敏感的知道医疗责任保险与保险要求和医疗失误诉讼之间的联系。美国医生开始争论，他们觉得保险金已经增长到了不能支持的水平。在日本，医疗失误责任保险金并不跟随专业或者地域而改变，甚至全部日本医生只支付很低的保险金。他说：“这种全国性冒险的日本医疗责任保险系统可能能稳定美国的责任保险有害的挥发。考虑到功效，我们不得不说，日本的医疗责任保险成本分散而稳定。”

Leflar教授将于12月14号出席在中国上海举行的，由上海社会科学院主办，关于健康问题的国际研讨会，并将在研讨会上报告他的研究结果。

Obstacles To Reducing Human Injury And Death Due To Medical Error
http://www.medicalnewstoday.com/medicalnews.php?newsid=58086

As a matter of policy, both the United States and Japan try to reduce occurrences of human injury and death due to medical error. Health officials in both countries realize that to develop any successful quality-improvement program to address this problem, they must obtain accurate information on the nature, frequency and cause of medical errors.

Robert B Leflar, a law professor at the University of Arkansas, says both nations struggle with this problem because obtaining information about mistakes by health-care providers creates serious tension between the equally important goals of patient safety and public accountability. In the United States, civil malpractice litigation has become so fierce that hospitals regard internal hospital information, obtained for the purposes of quality improvement, as a source of legal liability and thus want to protect it from reaching potential plaintiffs' attorneys.

Leflar, who is also an adjunct professor at the University of Arkansas for Medical Sciences and formerly a visiting professor at the University of Tokyo School of Law, spent the 2005-06 academic year in Tokyo studying how people and institutions in that country deal with medical error. He discovered that the Japanese approach is dramatically different from U.S. methods, and he says both countries have much to learn from each other. Leflar's recently published article on the topic is titled "Medical Error as Reportable Event, as Tort, as Crime: A Transpacific Comparison."

Leflar found that a major difference between the two countries is the type of law used when a patient is injured or dies because of a health-care professional's mistake. In the United States, legal action as a result of a medical error is almost always treated as a civil matter, a dispute between two parties. If one has reason to believe that a family member died because of error or negligence, the family hires an attorney who will use tort law, specifically medical 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 -- programs of self-critical analyses as part of the hospital accreditation process, and fear of civil litigation. Leflar found that although some Japanese hospitals are more frequently reporting medical errors on a voluntary basis, the absence of these accountability mechanisms means they are not compelled to do so.

"In Japan, the weakness of peer review and professional discipline structures, the lack of mandatory hospital accreditation and the absence of objective, hospital-by-hospital statistics on outcomes of medical treatment -- not to mention the relative infrequency of civil malpractice litigation -- enhances the social importance of criminal law as a way of increasing transparency in the medical world," Leflar said.

Few Japanese officials would argue that police and prosecutors are ideally suited for the role of medical quality control, Leflar said, but the weakness of other structures has forced them into that role. As an alternative, Japan's health ministry has developed an innovative "model project" in which independent and neutral groups of medical specialists investigate medical accidents. Their goal is to obtain facts and reach conclusions in a much more timely, less expensive and perhaps more accurate and objective fashion than the legal system allows.

"If the Japanese project succeeds," Leflar said, "American reformers seeking to link patient safety and improvement of the medicolegal dispute-resolution system may find the Japanese approach instructive."

Other initiatives and practices in Japan could inform health practices and policies in the United States, Leflar found. Most American physicians, especially those in high-risk specialties such as obstetrics and neurosurgery, are keenly aware of the connection between medical liability insurance premiums and the volume of both insurance claims and medical malpractice lawsuits. American physicians argue that premiums have risen to unsustainable levels. In Japan, malpractice liability premiums do not vary depending on specialty or geographic area, and, overall, Japanese physicians pay much lower premiums.

"The Japanese system of nationwide risk pooling of medical liability insurance may stabilize the harmful volatility of liability premiums in the United States," Leflar said. "From the standpoint of efficiency, cost spreading and stability, there is much to be said for the Japanese medical liability insurance approach."

Leflar will present his research results in Shanghai, China, on Dec.14 at an international symposium on health issues sponsored by the Shanghai Academy of Social Sciences.


编辑：西门吹血