Cancer Disclosure from Recent Medical Malpractice Cases in Japan

- Sumiko Takanami, M.D.
College of Medical Technology, Hokkaido University
Kita-ku N-14 w-5, Sapporo 060-0812, Japan

Email: staka@cme.hokudai.ac.jp
Eubios Journal of Asian and International Bioethics 12 (2002), 2-9.


Abstract

Courts have held that cancer disclosure was one of the medical practices that were in the physician's discretion. However, in recent medical malpractice cases on cancer disclosure, courts have limited the extent of the physician's discretion by requiring physicians to confirm the wishes of the patient for cancer disclosure and by asking whether or not medical institutions have human and material facilities for providing patients after being informed with mental and physical care.

Introduction

Recently, informed consent in the medical field has received wide-spread attention in our country. However, the situation is different in case of cancer. Because cancer has still been recognized as a disease which is incurable, people think that being told one has cancer is equal to a sentence of death. Should a physician inform patients of their cancer ? Even if a physician does so, who should the physician inform, patients themselves or their families ? How should the physician do so and when? These can not be unequivocally determined, because there are many factors to consider.

This author examined informing patients of cancer diagnosis in Japan from medical malpractice cases regarding cancer disclosure. Though courts have decided that cancer disclosure was one of the medical practices which were in the physician's discretion, some changes would be found in these determinations when much attention is paid to contents of these decisions and diversification of needs for the treatment of cancer,.

Cases where the cancer disclosure was found to be within the discretion of the physician

District Court Decision, Tokyo, December 21,1981(1) (hereafter”the Tokyo Dist.Ct.decision,1981”) was a case in which the patient with brain tumor died after leaving the defendant hospital where she had underwent the operation without being informed of the accurate diagnosis. This court found that whether or not a physician should tell a patient and his / her family the name of the malignant tumor was in the physician's discretion, considering the anxiety level of the patient.

The District Court Decision, Nagoya, May 27,1983(2) (hereafter”the Nagoya Dist.Ct.decision, 1983”) was a case in which it was alleged that the patient with lung cancer happened to know his diagnosis because of his physician's careless remark and suffered psychologically from this disclosure. This court found as following.”Appropriateness of informing a patient of the disease name should be widely examined from various human sciences, not only from the medical perspective. In the clinical setting the physician in charge should decide the disclosure after considering sufficiently the psychological effect of it on the patient.”

The District Court Decision, Nagoya, May 29,1989(3) (hereafter”the Nagoya Dist.Ct.decision,1989”) was a case in which it was alleged the patient died without having appropriate treatments because the physician did not inform the patient of the possibility of gallbladder cancer. This court found that decision about who the physician should inform, time, and contents and degree of the description was within the range of the physician's discretion to the extent it did not infringe on the patient's right of self-determination. And the physician's duty to inform a patient of the diagnosis was said to be one of the duties under a medical care contract based on the patient's right of self-determination.

The Appellate Court Decision, Nagoya, October 31,1990(4) (hereafter”the Nagoya Appe.Ct.decision,1990”) was an appeal from the Nagoya Dist.Ct.decision,1989. This decision mentioned as following.”Whether or not a physician informs a patient of the disease name should be based on the following factors, especially, the symptoms, will, mental state, and capacity of the patient, circumstances such as the existence of a fiduciary relation between the physician and patient, or the degree of cooperation of family. After these facts are appropriately considered, the cancer disclosure is finally within the physician's rational discretion”.

The District Court Decision, Tokyo, March 30,1994(5) (hereafter”the Tokyo Dist.Ct.decision,1994”) was a case in which near relatives of the patient with terminal stomach cancer were not informed of the patient's diagnosis. This court added other conditions such as human and material facilities in the medical institution to the list of considerate factors, and stated that cancer disclosure should be first based on the rational discretion of the physician in charge of treatment.

The District Court Decision, Akita, March 22,1996(6) (hereafter”the Akita Dist.Ct.decision,1996”) was a case in which it was alleged that the 77 -years of age patient with terminal lung cancer died before family members cared for the patient courteously because they were not informed of his cancer. This court held that non-disclosure to the patient was in physician's discretion, but nondisclosure to family members was the physician's fault. Further the court added following factors such as the wishes of the patient and the family for disclosure and a prospect of mental care or support.

The Appellate Court Decision, Akita branch Sendai, March 9,1998(7) (hereafter, “the Sendai Appe. Ct. decision, 1998”) was an appeal from the Akita Dist.Ct.decision,1996. This decision also found that nondisclosure to the patient was in the range of the physician 's discretion indicating the following reasons. The patient were old and had terminal cancer, the fiduciary relation of the physician and patient was not established, and the patient did not manifest the wishes for cancer disclosure to the physician. Then this court held that cancer disclosure should be at the rational discretion of the doctor in charge after the following factors being considered, the present state of disease, how dependent the patient was on treatment, age and character, mental state, family circumstances, psychological support for the patient after being informed of the disease, and the effect of the disclosure on treatment.

Cases regarding the partner who a physician should inform

The Tokyo Dist.Ct.decision, 994 found as follows. “Informing near relatives does not prevent hospital activities. Therefore, when a patient with advanced cancer is not informed of cancer, in order to ask family members for cooperation and get useful information from the family, the physician should inform family and the other near relatives, as long as there is no a special reason which prevents such disclosure.”

The Sendai Appe. Ct. decision, 1998 stated that if nondisclosure to a patient was rational, a physician had a duty to make every effort to contact the family of the patient and to examine the suitability of informing the family.

An Examination of the Above Cases

Though the physician's discretion has been consistently upheld in these cases, there recently seem to be changes in the factors which courts require a physician to consider before determining cancer disclosure. First, decisions have added the patient 's wishes to be informed. The Nagoya Appe. Ct. decision,1990 inquired into the will and mental state of the patient, The Tokyo Dist.Ct.,1994 and the Akita Dist.Ct.decision,1996 also stated that the patients' wishes for disclosure should be confirmed.

The next is an item regarding a comprehensive care for the patient who has been informed of cancer. The Akita Dist.Ct.decision,1996 required “ mental care and support after disclosure”, and the Appellate Court decision in 1998 also mentioned “preparation for psychological support for the patient after being informed”. The staffing and material facilities in a medical institution that the Tokyo Dist.Ct. decision 1994 required seems to indicate conditions of staff or material ready for patients after being informed.

It can be said that recent decisions have emphasized patients' wishes for disclosure and the staffing and material conditions for providing mental and physical care as factors to be considered when a physician determines disclosure. In short, these decisions state that though cancer disclosure is a problem which must be entrusted to the physician's rational discretion, the wishes of the patient for disclosure and being available for mental and physical care limit the discretion of the physician.

The Sendai Appe. Ct. decision, 1998 found that when a physician determined not to inform a patient of the diagnosis, the physician had a duty to examine if the family should be informed. The Tokyo Dist.Ct.decision,1994 held that when the patient with advanced cancer could expect only the prolong life and not informing the patient of the diagnosis was reasonable, a physician should inform the family or other near relatives of the patient's bad prognosis. From these judgements, one can see that courts have a tendency to hold that nondisclosure to a patient is in the physician's discretion after considering various reasons, but nondisclosure to the family is another issue. To begin with, the Tokyo Dist.Ct.decision, 1994 stated that disclosure to the family was necessary in order to ask cooperation of the family and to get useful information about the patient from the family. Next, the Sendai Appe. Ct. decision, 1998 stated that if the family would have known the patient was near death because of cancer, the family could have let the patient receive appropriate medical treatments and taken more time with the patient.

It can be said that these judgments have been influenced by the following facts. When a patient is old or in an advanced stage, physicians are passive in asking the wishes of the patient, and if the family does not want the patient to be told, or the family opposes informing the patient, physicians usually follow the family’s wishes. Very few physicians override the family’s objection (8).

Discussion

Decisions have held that the patient's wishes for cancer disclosure was a very important matter. This means that in addition to the increasing ability to cure cancer by advances in diagnosis and treatment, disclosure of the disease and symptoms has come to be required from the viewpoint of patient's right. When the wishes of the patient is regarded as one of the factors for consideration, whether or not a medical institution made an attempt to know the patient's wish is sure to be an issue. It was reported that at the department of surgery, Regional Cancer Center of Ibaraki Prefecture Central Hospital, cancer disclosure has been promoted since June, 1992 and that from April,1995, the hospital has investigated the wishes of all first visit out-patients for cancer disclosure, and informed-consent for patients has been carried out based on their wishes (9). With such methods, medical institutions would be required to confirm patients' wishes for cancer disclosure if they are afflicted with cancer. Though it is difficult to say that patient's wishes on admission or in an initial diagnosis continues unchanged, it is an important element which limits the discretion range of a physician.

The next factor to be considered is the human and material facilities which provide mental and physical care to a patient after being informed. This means whether or not a medical institution is prepared for comprehensive care to a patient with advanced cancer has become an important consideration in judging the appropriateness of cancer disclosure. For example, in the Nagoya Dist.Ct.decision,1989 case, the patient once made a hospital reservation, but called the defendant hospital stating she wanted to postpone the hospitalization, and did not come afterwards to the hospital. Here, if a cooperation of staff, such as physicians, medical social workers, nurses, and public health nurses, was systematized in the hospital, the hospital would communicate with her or her family in order to follow her condition after she visited the hospital last. So, this case would have progressed differently.

In addition, is it reasonable that only a physician shoulder the burden of cancer disclosure? For example, the Sendai Appe. Ct. decision, 1998 found that whether or not a physician inform a patient with advanced cancer of the diagnosis should be considered based on the following. “ Various reasons such as medical care progress, the age, character, and mental state of the patient, family circumstances, effect of cancer disclosure on the treatment, facilities for the psychological supports of the patient after disclosure, etc. “. However, it should be not that only the physician investigates, but that medical staff cooperate with each other to collect accurate information. What appropriate care for this patient is should be discussed and judged by them.

“Hospice and Palliative care”has recently discussed as appropriate care for a terminally ill patient. It is for the patient to spend a comfortable life with the family as long as possible by taking mental and psychological relief from physical pains rather than prolonging life(10). Hospice care and palliative care units for malignant tumor patients in an advanced stage have gradually increased and total 87 facilities (1614 floors) as of May 1, 200I(11). These show that there is a change in the society from denying the cancer to recognizing it and interest has turned to care after being informed rather than the issue of whether or not a patient should be informed. Many researchers describe the importance of the all-round care after disclosure (12).

Conclusion

It would be impossible for patients to spend time with their families and accept care from the families without being informed of the truth. Because their conditions continue to worse in spite of medical treatments. They will become anxious about their diseases, worry about what physician and family say, and feel alienated.

From recent decisions, we can see that our attention has been paid to care for patients after being informed rather than the issue of whether or not patients should be informed.

References

1) Hanrei-Jiho, No.1047, 101, 1982.

2) Hanrei-Jiho, No.1082, 91, 1983.

3) Hanrei-Jiho, No. 1325, 103, 1989.

4) Hanrei-Taimuzu, No.744, 182, 1991.

5) Hanrei-Jiho, No. 1522, 104, 1995.

6) Hanrei-Jiho, No. 1595, 123, 1997.

7) Hanrei-Jiho, No.1679, 40, 1999.

8) Akira Akabayashi, Michael D Fetters and Todd S Elwyn, Family consent, communication, and advance directives for cancer disclosure: a Japanese case and discussion, JME 25 (1999), 296-301. Michael D Fetters, The family in Medical decision making: Japanese Perspectives, The Journal of Clinical Ethics, Summer (1998), 132-146. Atsushi Asai, Barriers informed consent in Japan, Eubios Journal of Asian and Inter national Bioethics 6 (1996), 91-93. Tetsuo Kashiwagi ; We study Death - shining in respect of a final every day-, Yuhikaku (1995), 69.

9) At Panel Discussion in the 98th Japan Surgical Soc. General Meeting (Theme : Problems with Cancer Disclosure ; Surgery and Informed Consent) , Tomihiro Yoshimi et al. reported on”cancer disclosure and informed consent for the general surgery operation patient”(1998). It is based on the http://www.minato-coop.com/ikyoku/karute.html home page.

10) Elizabeth T. Yeh and Sumiko T, Elder care in the United States of America, Journal of comprehensive nursing research 3 (No.2, 2000), 14.

11) Based on the announcement of the national hospice, palliative care unit Liaison Council.

12) Katsutaro Nagata ; The terminal care (the hospice mind), medical treatment and human_- medical treatment and ethics-, 269-273, Medica publication, 1994. Shizuko Kiba ; After the notification of cancer, 41, Iwanami sinsyo, 1993. Satoshi Yoshida ; Conversation with the patient who suspects the cancer, nursing and counseling ,127-128, Medica publication, 1988. Yasuhiko Morioka ; Informed consent, 163, Japan broadcasting publisher's association, 1994.


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