FROM JUDGEMENT APPRAISAL TO PARTY'S ADVICE

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  • HIRANUMA Naoto
    Department of Legal Medicine, Showa University School of Medicine
  • FUJISHIRO Masaya
    Department of Legal Medicine, Showa University School of Medicine
  • SATO Keizo
    Department of Legal Medicine, Showa University School of Medicine

Bibliographic Information

Other Title
  • 裁判上の鑑定から当事者鑑定へ
  • 裁判上の鑑定から当事者鑑定ヘ : 医療過誤訴訟における私的意見書の実態と提言
  • サイバン ジョウ ノ カンテイ カラ トウジシャ カンテイ ヘ : イリョウ カゴ ソショウ ニ オケル シテキ イケンショ ノ ジッタイ ト テイゲン
  • —An Investigation and Proposal on the Written Opinion in Medical Malpractice Suit—
  • ―医療過誤訴訟における私的意見書の実態と提言―

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Abstract

For a medical malpractice civil suit, the means by which to obtain medical information is important. Previously, an adviser elected by the court stood in the central core, but now, a written opinion requested by a plaintiff or a defendant takes that place. Regarding the way to obtain the medical knowledge in the judicial process, this paper introduces judicial advice, written opinion, expert committee, turn-to-mediation, accident investigation report, death certificate, medical certificate by post-doctor, doctor-hearing, and record of the hearing from another doctor, and assesses these practices according to merits and demerits. As for my recent 12 cases as attorney passed first judgment and later became final (except for settlement cases, because trial was not sufficient), the table indicates the case summary and point, hospital department, court location/medical expert court or ordinary court, date of judgment, existence of an attorney for plaintiff or none, presence of a written opinion requested by the plaintiff or no/if yes, examination of the opinion writer or no, presence of a written opinion requested by the defendant or no/if yes, examination of the opinion writer or no, advice or no, result of the judgment, appeal or no, special mention. The civil law system in Japan stands in adversary system, which is clear through proof and argument by parties among sharply clashing interest, therefore, advice on the judicial process is like aninquisitorial system, but the written opinion matches the adversary system of the judicial process. The advice has no means to ensure a sufficiently fair and neutral process, it takes long time, and there are other problems. Thus, conference advice by 3 doctors forced to solve the problems shows legal suspect, although the written opinion must center in judicial process for resolution. Because the judicial process must be offense and defense about the written opinion, it is necessary to attach a written opinion for the plaintiff(patient side)on the presenting petition, while, the defendant (doctor side), first, has to supply counterargument and counterevidence based on medical textbook, and if not sufficient, decide to present a written opinion. With written opinions presented by both sides, the judge must advise both sides to compromise by impression, but if this is not successful, slide to concentrated examination, not only parties themselves but also an opinion writer of a plaintiff. Advice is a last resort at the end of resources. Thus, written opinion is so important that it will be named party's advice.

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