In the present study, we focused on obstetrics and gynecology departments, for which medical litigation and substantial compensatory payouts are becoming particularly problematic, and we hypothesized that aspects of the physician’s duty to explain would differ by medical department. Several reports have emphasized the importance of communication in obstetrics and gynecology departments, [27, 28] as well as the problems associated with the continued availability of obstetric care in rural areas, caused by medical litigation [29]. We sought to define factors associated with the physician’s duty to explain by comparing obstetrics and gynecology departments with internal medicine and surgical departments. We made several interesting findings.
Firstly, we found a large number of cases in which a mistake by a physician in a medical procedure was recognized among cases involving obstetrics and gynecology departments where a breach of the duty to explain was acknowledged. While no significant differences in the proportion of cases involving mistakes in medical procedures on the part of the physician were seen among medical departments, cases where both a breach of the duty to explain and a mistake by a physician in a medical procedure were recognized were significantly more common among obstetrics and gynecology departments than other departments. We obtained different results for internal medicine departments and surgical departments; in cases involving internal medicine departments, the physician was often considered responsible when there was a breach of the duty to explain alone, whereas in cases involving surgical departments, the physician was often considered responsible when there was a mistake in a medical procedure alone. One reason for both breaches of the duty to explain and mistakes in medical procedures being recognized in cases involving obstetrics and gynecology departments may be that the patient refuses to accept the physician’s error, as stated previously. Moreover, the degree of accountability of obstetricians ranked somewhere between that of physicians working in internal medicine departments and those working in surgical departments. This may be due to interdepartmental differences in physician–patient communication, and while communication may be the cause of litigation against internal medicine departments, this may not be the case for surgical departments [7]. In other words, routine physician-patient communication differs between primary-care physicians who have and have not been required to defend prior malpractice claims. Such differences were not evident in surgeons who had been required to defend prior claims [7]. Physicians can improve communication by conversing longer with the patient, facilitating such conversation, and by being warm and friendly. Formal medical education is required to facilitate this [7]. Patients may consider surgeons to be technical experts, and thus accept a businesslike manner, but physicians are different [7]. In particular, an obstetrician is considered to be intermediate between a surgeon and a physician, and appropriate patient communication must be practiced.
Next, the number of patient deaths was significantly higher in obstetrics and gynecology departments that had conceded that a breach of the duty to explain had occurred. This is a recurring theme in medical litigation involving such departments. The extent of the injury sustained was irrelevant [6]. We also found no association between the extent of injury and the presence or absence of a breach of the duty to explain, although the numbers of negligent deaths were significantly higher in internal medicine and surgical departments than obstetrics and gynecology departments. Often, patients filing claims against obstetrics and gynecology departments consider that the serious injury complained of would not have occurred had they been fully informed about the possibility of such an outcome. Cases involving death include instances of postnatal anoxic encephalopathy, death from bacterial shock just after delivery, death from blood loss, death caused by ovarian hyperstimulation syndrome after infertility treatment, and death caused by uterine rupture after delivery. In most cases, the deaths were unexpected. However, it is very difficult to define the extent of accountability. Risk communication is problematic; if this is overdone the patient will become fearful and decline medical care that s/he urgently needs. Occupational ethics and the law related to physician behavior are in play. The topic requires further attention.
In addition, whether or not the care provided at the time of treatment was standard affected whether a breach of the duty to explain occurred in obstetrics and gynecology departments. This is likely due to retinopathy of prematurity cases in Japan from 40 years ago. A large number of medical litigation cases argued that physicians should have been aware of the fact that treating premature infants with high oxygen concentrations caused retinopathy of prematurity; thus, the medical standards at the time of treatment were disputed. In other words, a breach of the duty to explain was not acknowledged in the majority of lawsuits where a decision was made based on the year in which the case occurred, even if the decision was that the standard of care was provided. This is because physicians previously found it difficult to obtain information on medical standards. However, as this information became more widespread and we entered an era in which it was a requirement to be aware of medical standards, breaches of accountability were acknowledged. As a result, the lessons learned in obstetrics and gynecology departments may be applicable to other departments in the future. Physicians must therefore remain sensitive to daily developments and advancements in medical care and avoid neglecting their studies.
Furthermore, a particular feature of claims against obstetrics and gynecology departments is the assertion by patients of their rights to self-determination. In obstetrics and gynecology departments only, the proportion of cases in which the purpose of an explanation was to obtain patient approval for a procedure was significantly higher when a breach of the duty to explain was acknowledged than when it was not. For example, treatment and surgery applied without consent is often alleged in such instances. A typical case involved resection of a uterus with the approval of the husband, but not the patient herself; this was found to be illegal. Thus, in the absence of an emergency, the right of patient self-determination must be respected. Family relations often attend obstetrics and gynecology departments, and it is essential not to substitute an explanation to a family member for an explanation to the patient, who must herself consent.
The proportion of cases in which a breach of the duty to explain was acknowledged was significantly high among recent cases involving obstetrics and gynecology departments, and was similar to internal medicine departments. Furthermore, in internal medicine and obstetrics and gynecology departments, where physicians’ explanations carry great weight, the liability for a breach of the duty to explain was, in particularl, strongly emphasized. Moreover, the proportion of cases in which a breach of the duty to explain was acknowledged was higher among cases involving fewer disputed points, and was similar to that in internal medicine and surgical departments. Breaches of the duty to explain have not, generally, been the central issue at trials and have often been only an addition. However, several recent medical litigation cases have been filed due to breaches of the duty to explain alone, and the fact that breaches of the duty to explain tend to be acknowledged when there are fewer disputed points demonstrates their importance.
As described above, it is important that the communication style reflects what the patient expects of the medical specialist. Physicians must be accountable to their patients, and must therefore prioritize communication. Also, terminal disease, advanced age, emergency care, the need to die with dignity, euthanasia, and assisted suicide, all raise ethical issues, and such patients require different types of support. Characteristic features of surgeon-patient communication have not been described [7]. In the present study, we identified two important factors: patients value thorough explanations, and they insist on the right to make their own choices. However, as subspecialities increase in number, it will be necessary to carefully define the ethics of medical care by reference to physician skill and legal issues. In obstetricians, high medical standards are associated with good explanations. In the future, the question arises as to who will regulate the use of technology in saving lives, facilitating birth, and exploring aspects of heredity. Furthermore, will this be a matter for medical ethics, the law, or scientific associations to decide? Much further thought on such issues is required.
Limitations of the study and future problems
This study did not deal with all recent court decisions concerning violations of the physician’s duty to explain during the study period in Japan. Thus, bias may have been introduced because the decisions were published in only two journals as case reports based on the topic and a new interpretation of the laws, and cannot easily be subjected to tests of external validity. Therefore, our results should be interpreted with caution. It was also difficult to acquire all precedents, and compromises (where cases were settled out of court) were not included in analysis.
Furthermore, surgery and internal medicine departments feature subspecialists, but this is not the case in obstetrics and gynecology departments. We did not group physicians by subspecialities, as this would have rendered analysis difficult; rather, we defined major classes of expertise. This may have affected our results. Despite these limitations, we believe that our data are useful; we extracted as much information as possible from the relevant case reports.