1. Associations between doctors' communication skills with patients and legal liability
There were notable findings with respect to the association between doctors' communication skills with patients and their legal liabilities. First, there is the factor of the timing of the doctor's explanation, a subject that has not previously been studied. We studied whether the timing and manner of doctors' explanations influenced the judgment of physician liability by court decision. Our results showed that the ratio of cases in which an explanation was given prior to treatment or surgery was high in relation to the court's decision in favor of the doctor or hospital (Table 2). This shows the importance of explaining a procedure or regimen before performing the procedure.
Second, there is the factor of the level or manner of the doctor's explanation to the patient. When explanations were not relevant and specific, as occurred in most cases, decisions were in favor of the patient (Table 2). In the UK, this has increased the demand for relevant and specific explanations [17]. In Japan, the need for an explanation in layman's term is definitely required, especially for the patient who does not have professional medical knowledge [18]. In this study, when the doctor's explanation was too general, the doctor's explanation behavior was not acknowledged by the court. Hence, a more detailed dialogue between the two parties is suggested.
Third, regarding the acknowledgement of doctor's fault by a court decision, no case that was rejected (i.e., decided to be in favor of the doctor or hospital) acknowledged physician liability (Table 2). This suggests that the court's acknowledgment of a doctor's fault, including faulty management and technical mistakes, strongly influences the acknowledgment of physician liability in a court decision. In this study, 56% of such cases accounted for a court decision in favor of the patient. However, overall medical malpractice litigation in which the decision has been made in the patient's favor is low in Japan. The mean proportion of decisions in favor of patients between 1992 and 2001 was 37.42% for medical malpractice cases and 86.07% for litigated cases in general, including medical malpractice cases [19]. This could be the reason why doctors and hospitals, as defendants, are thought to be well-off and more familiar with procedures in litigations than the plaintiffs (i.e., the patients or their families). In addition, it is extremely difficult to assign liability to the doctor, insofar as there is no admission of the physician's fault in the court decisions examined [20]. This study does not include all medical malpractice litigations in Japan, but the results suggest that part of a doctor's liability includes his or her duty to explain medical issues to the patient, even without a doctor's fault such as faulty management or a technical mistake.
Fourth, the ratio of non-life-threatening diseases in which urgent management is not necessary, and there is time for a physician to explain the situation in order to obtain the patient's consent, was higher in those cases decided in favor of patients than in those decided in favor of the physicians and/or hospitals (Table 2). Furthermore, patients commonly have to pay the medical and hospital bills for elective treatment, as relatively few of these costs are covered by public health insurance in Japan. A review of elective treatments shows that the majority involve cosmetic surgery or procedures associated with aesthetics. Thus, it is thought that patients may well demand a detailed explanation and doctors might not meet all of the patient's expectations in this respect.
Fifth, regarding the severity of injury of the patient, the death ratio was low with respect to decisions in the patient's favor. Death results did not necessarily influence the judgment of physician liability by the court (Table 2). Previous studies have reported that the rate of decisions in favor of patients was lower when a patient died than when injured temporarily or permanently [20]. The present finding is in line with the previous finding that the severity of injury does not influence a court's decision. The mean age of patients receiving favorable decisions was younger than that of patients who received unfavorable decisions. This might be due to the fact that the prevalence of death or of elective treatment is lower among younger patients. Conversely, it may be inferred that, for elderly patients, obtaining informed consent is considered difficult by virtue of the presence of an underlying disease, resulting in greater chances of unfavorable decisions.
As for the reasons for medical disputes, several studies have revealed an association with the relationship between the doctor and the patient, not the outcome of the management [21]. In the process of medical treatment, the doctor's ability to communicate is considered the fourth skill in the field of medicine, after the abilities to prescribe drugs, treat patients, and perform operations. The present study revealed that court decisions varied according to the doctor's communication skill with patients, which indicates the importance of good communication in the doctor-patient relationship.
2. Differences in the doctors' communication skills with patients based on the type of medical facility
This study reveals differences in doctors' communication skills with patients according to the type of medical facility. The first variable is the direct recipient of the doctor's explanation. The doctor's explanation included the family more often in a hospital. This might be due to the fact that the ratios of inpatients and surgical departments are higher in hospitals than in clinics. In Japan, it is assumed that the family plays an important role in the decision-making of the patient; in fact, when physicians hold conversations with the patient or family, there is a decreased probability of a court decision of negligent care [14]. Regarding the doctor's explanatory duty, it is the doctor's decision to choose whom to involve in the conversation. However, we found that the family was included in the hospital group much more often than in the clinic group (Table 3).
The second variable is the number of doctors who explained to the patient and/or family. A single doctor typically provided the explanation to the patient in a clinic, while two or more doctors typically provided the information in a hospital setting, as shown in Table 3. These results are not surprising in that doctors usually work alone in clinics, while several physicians are available to provide information to the patients and their families in hospitals.
A third issue involves the manner of the doctor's explanation, where the ratio of verbal explanation supplemented with other methods is greater than verbal communication alone in the clinic group (Table 3). It has been reported that supplementation of a verbal explanation with documents or supporting materials is vital, but no verifying evidence for this exists. Our analysis also shows that the manner of the doctor's explanation to the patient does not influence the court decision (Table 2). In the hospital, many cases were verbally discussed only with the patient; additional studies would help to clarify this association.
Regarding all the other variables, except for the manner of the doctor's explanation, when the cases in hospital were compared with those in the clinic, the following characteristics were recognized: the ratio of elective or untimely treatment is low, the ratio of the patient's death due to injury is high, the ratio of involvement of the surgical department in patient care is high, the mean age of patients is higher, and the ratio of introducing an expert witness is high. In both the clinic and hospital settings, differences exist with respect to the administration of medical care and patient factors. It is possible that these factors may relate to differences in the manner of doctors' explanations. However, that is beyond the scope of our study.
With respect to the timing of the doctor's explanation, the level of the doctor's explanation to the patient and the level of the doctor's explanation to the family, there was no significant difference between doctors in clinics and doctors in hospitals (Table 3). However, these three communication factors were critical points in court decisions of physician liability (Table 2). One possible explanation for the lack of difference is that physicians in both clinics and hospitals might have acquired such basic communication skills.
Interestingly, a notably higher ratio of court decisions acknowledging physician liability occurred in cases involving clinics than in those involving hospitals (Tables 2 and 3). It has been proposed that medical standards should not vary with the size or type of medical facility. When a doctor's communication skill with patients is assessed in terms of its content and range, the basis of the doctor's explanation should depend on universal medical standards when care is delivered [10]. In other words, no difference in the medical standard and range of a doctor's communication skill with patients, based on the type of medical facility, should exist. However, in recent years it has been argued that the standard of care should be higher in hospitals than in clinics. In 1997, the doctor's communication skill with patients was defined as an important factor of medical treatment in a recent law revision (Medical Law, Article 4, Law No. 205, 1948). Given that a physician's explanation can be regarded as an index of the quality of medical care, more detailed explanations should be the norm in hospitals, as the level of medical care in hospitals is thought to be higher than in clinics. Our findings can be construed to support such an opinion, but further study is necessary to verify this point.
In addition, the following factors might be attributable to our findings: Countermeasures to medical malpractice litigation are more adequate in hospitals than in clinics; and the establishment of a bioethics committee and the presence of a legal adviser are more often expected in hospitals than in clinics. In summary, constant vigilance and discussion concerning medical malpractice issues are undertaken in hospitals, which may contribute to hospitals winning more often when it comes to litigation.
Limitations of the study and future problems
First, this study does not deal with all the recent court decisions concerning violations of the doctor's duty to explain during the study period in Japan. Thus, a bias may have been introduced because the decisions were published in magazines (i.e., case reports) according to topicality and a new interpretation of the laws. In fact, cases in which decisions favored the patient in general medical malpractice litigation in Japan between 1976 and 1987 constituted only 37.3% [19], whereas our study showed 65%. However, few studies have analyzed these decisions and, thus, few interpretations have been derived in Japan. We believe that our data constitute a useful data source that may provide insight into how physicians' communication skills with patients are related to their liability.
Second, only a few cases were analyzed and, in particular, clinic cases were relatively rare. Further cases must be assessed to clarify differences in doctors' communication skills with patients between clinic and hospital settings.
Despite the abovementioned problems, when the factors of a medical dispute were reviewed, decisions in litigated medical malpractice were regarded as important for the following reasons. First, court decisions in medical litigation cases are the only publicly available information on patient-physician communication in the medico-legal field. Second, the analysis of medical malpractice litigation focusing on the doctor's duty to explain will become increasingly important. Thus far, however, studies using medical malpractice litigation have been based on qualitative analyses. Our study has the following characteristics: the decisions of medical litigation cases were evaluated quantitatively, and our results revealed factors related to the doctor's duty to explain. In summary, we presented a new methodology based on court decisions and reported new findings. Because this is the first report regarding a doctor's duty to explain, future studies are needed to verify the validity of our results.