Laws on Medicine
Lecture No.5 (in Classroom 22, Wednesday, October 29, 2008, at 15:00-16:40)
Chapter 5: Doctor’s Duty of Responding to Call-up
１）What is the doctor’s duty of responding to call-up and of
medical care?
２）Why does the doctor have a duty of medical care? Why
doesn’t the attorney have a duty to accept a commission?
Faculty of Law, University of Tokyonhiguchi@j.u-tokyo.ac.jp Norio Higuchi and Yasuji Kodama

1Supplement to Last Class
Administrative Punishment of Doctor
What sort of form should it be for the future?
Controversial relationship with the commission ofinquiry on safety of medical care (the way thediscipline should be relative to medical mishaps)2

Variety of Administrative punishment:
Medical Practitioners Law
Article 3: No license shall be provided to minors, adult wards, or warrantees.
Article 4: The license may not be provided to any person who falls under any of the following items:(i) Those unable to conduct medical operations due to mental or physical disorders prescribed in theOrdinance of Ministry of Health, Labour and Welfare(ii) Those addicted to narcotics, cannabis, or opium(iii) Those sentenced to punishment by a fine and heavier(iv) In addition to those who fall under the preceding items, any person who has committed a crime
or malpractice with respect to medical affairs
Article 7: When any doctor falls under Article 3, the Minister of Health, Labour and Welfare shallcancel his/her license.
(2) When any doctor falls under any of items under Article 4, or has committed a conduct to lower
the dignity as a doctor, the Minister of Health, Labour and Welfare may implement thepunishments listed in the following:(i) Reprimand(ii) Suspension of the medical profession for less than 3 years(iii) Cancelation of the license
Article 7, item (ii): The Minister of Health, Labour and Welfare may order any doctor who hasreceived punishments listed in the preceding Article, paragraphs (1), item (i) or item (ii), or anyone
who is intended to apply for the renewed license pursuant to the provisions in the same Article,
paragraph (3), to take what is provided for in the Ordinance of Ministry of Health, Labour andWelfare as the study training regarding the maintenance of ethics as a doctor or the knowledge
and capacity to be possessed as a doctor (hereinafter referred to as “Reeducation Training”).
3Draft plan, being aimed at guaranteeing medical safety, regarding theinvestigation to determine the causes of death due to medical mishaps and theway of the recurrence prevention should be―The third draft plan―April 2008
【Administrative Punishment】(46)While it is pointed out that system errors are the cause of many medical mishaps, current administrative
punishments for medical mishaps are handed out to individual medical professions based on MedicalPractitioners Law and Law for Public Health Nurses, Midwives and Nurses.
(47)In local committees, since investigation is conducted from the standpoint of medical safety, using survey
results of local committees as reference, the administrative punishment for medical mishaps shall befocused on the improvement of system errors aiming at the enhancement of medical safety.
(48)Specifics shall be the following:①From the perspective to improve system errors, the punishment to medical institutions shall be establishedin Medical Practitioners Law. Concretely speaking, medical institutions shall be ordered to submit a plan
document regarding their structural development to secure medical safety, and be requested to takemeasures for preventing a recurrence of such problems. Accordingly the administrative punishment toindividuals shall be controlled.
②The punishments to individual medical professions based on Medical Practitioners Law and Law for
Public Health Nurses, Midwives and Nurses are being implemented by the Minister of Health, Labour andWelfare listening to opinions of Medical Ethics Council. When the causes of medical mishaps are judged to
be not just system errors but also the failure to perform individuals’ duties, and medical institutions’submission of a plan document regarding the structural development to secure medical safety is not goodenough, the punishments to individuals may become necessary. In such cases, the punishment shallemphasize reeducation, rather than one involving suspension of operations.
(49)Still, as for the administrative punishment for medical mishaps, the judgment shall be made based on anextent of a breach of care duty by medical professions, and additionally, in the light of medical institutions’administrative system, medical system, and a degree of care duty on other medical professions. For thismatter, deliberation in Medical Ethics Council shall be reconsidered.

4

Objective/Procedure of Administrative
Punishment
Who administers the punishment and what for?
U.S.: Committee in each stateCore members being medical workers, plus others
Subject being naturally medical mishaps, and others
Combination of regulation, autonomy, and market
Our country is at the starting line…
but it’s difficult to be uniform throughout the nation (to cover380,000 people)5Doctor’s Duty of Responding to Call-up
Article 10, paragraph (2) of Medical Practitioners Law: “A doctor
engaged in medical care, when requested for medicalexamination and treatment, shall not refuse said request
without justifiable grounds.”
To look at the meaning of the terms…
Doctor engaged in medical care
Request for medical examination and treatment
Justifiable grounds
Similar provisions on other medical professions

6Doctor’s Duty of Responding to Call-up
A family physician R, having participated in a drug trial on
osteoarthropathy and produced certain results, came to attend a
conference in Melbourne in order to join a debriefing session
on researches.
In the plane for Melbourne, someone was suddenly taken ill. A
flight attendant called out, “ Is there a doctor here?” Dr. R
hesitated as he had limited experience of examining patients
having heart stroke. In this case, what should Dr. R do?

7

In-flight Emergency Case and Doctor’sRole, and Law’s Role
Two approaches
A. Sanctions TypeTo impose a duty of rescue on the doctor (duty of responding to call-up),
and, if refused, inflict a criminal punishment. When the doctor actually
gave treatment and made a mishap, to place civil liability on him, andfurther, to consider an administrative punishment.
◎Triple punches of criminal sanction, civil recompense, andadministrative punishment
B. Support TypeTo declare a duty without sanctions for the doctor to stand up on hisgoodwill. To set up an exemption of liability for negligence when an actual
treatment was given. Even if the result was unfavorable, there would be nocivil recompense, not to mention an administrative punishment.
◎To encourage a good act by lowering legal risks

8In-flight Emergency Case and Doctor’sRole, and Law’s Role
Two real laws 【Emergency Affairs Administration and Duty of Responding toCall-up 】
A. Article 698 of Civil Law: “An administrator, when practiced
administrative affairs in order to help a person stave off a pressing injury on
his/her body, honor or property, unless there was malice or a serious mistakeon the administrator’s part, is exempt from the responsibility forcompensation for damage incurred thereby.
→Article 697: “A person who has begun the administration of affairs forother persons without obligations (hereinafter referred to as an“administrator” in this chapter)
B. Article 19 of Medical Physicians Law: “A doctor engaged in medical care,when requested for medical examination and treatment, shall not refuse said
request without justifiable grounds .” (Without penal provisions)◎Obviously responding in “Support Type”
9Thoughts of Some Doctors
1 Article 698 of Civil Law is no help.
For, this won’t be applied as the doctor assumes the duty of
responding to call-up.
2 There is a possibility to be blamed for negligence liability andsued if involved and gotten bad results.
3 So let’s feign ignorance, like pretend to have fallen asleep.

10Mistake as Legal Theory
1 Is feigning sleep safe?
→If the duty of responding to call-up is applicable to theinside of an aircraft, there is a possibility for a jurist to press
the doctor hard for (nonfeasance) professional negligence
resulting in injury and/or death.
→If someone in the plane who knows the said person is adoctor, there is an enormous risk.
2 Nonetheless, there remains a question as to whether asanctions-type law is relevant after all.

11As Legal Theory
1 There is no duty of responding to call-up to a doctor inside aplane.
Thus Article 698 of Civil Law gets applied.
2 The duty of responding to call-up is applicable to an in-flight
doctor but there is no punitive provisions to it. Accordingly, as
it is not so much obligations as in Article 698 of Civil Law
stipulating “without obligations,” Article 698 of Civil Law
gets applied, too.
*In whichever interpretation, a doctor is safe.
Because that’s a commonsense conclusion.
Commonsense=Law: To encourage an act of a well-intentioned
doctor

12

As Legislative Theory
By legislating a Japanese version of the law to promote lifesaving acts, rescuers including medical care personnel should
be granted an exemption of negligence liability
Good Samaritan Act adopted throughout the all states of theU.S. and some states in Canada is what the medical societies
have pushed forward.

13

Doctor’s Duty of Responding to Call-up
Article 19, paragraph (1) of Medical Practitioners Law: “A doctor
engaged in medical care, when requested for medical
examination and treatment, shall not refuse said request
without justifiable grounds.”
To look at the meaning of the terms…
Doctor engaged in medical care
Request for medical examination and treatment
Justifiable grounds
Similar provisions on other medical professions

14

Case of Pregnant Woman’s Death—Turn-away by Hospitals<Death of Pregnant Woman> One intern on night duty at Bokutoh Hospital, unable to maintain 2-doctor
systemMainichi Shimbun, distributed at 15:01, October 23, 2008
As to the problem of a 36-year-old pregnant woman inTokyo who died after being turned away by sevenhospitals, a duty doctor at Metropolitan Bokutoh Hospital (Sumida-ward) , which had at first turned heraway, was an intern referred to as “Senior Resident”, it was found out. There were reportedly f our days
that one intern alone went on night duty in October. In June, Bokutoh Hospital notified in writing to relatedorganizations that , in occasions of Senior Resident on night duty, the hospital “in principle would restrict
the receiving of maternal transport.”
According to the hospital management headquarters of Tokyo Metropolitan Government, Bokutoh Hospital’sobstetrical section became unable to keep the system of two doctors on night duty due to one doctor'sresignation at June end. For this reason, the hospital sent out those concerned the notice on restricting thereceiving that, as for the night-duty system on Saturdays, Sunday s and holidays starting in July, “inaddition to being one-member night duty, there are situations where its member is Senior Resident, which
would make the treatment of deliveries at high risk difficult.”
Senior Resident , having completed the initial-stage clinical training for two years, is an intern doctor underfurther training of the latter stage aiming at a medical specialist. The Metropolitan Government said thedoctor who turned away this time had a career of four years since obtaining the medical license.
Situations like this have not changed since the latest problem was revealed, it is said; Osamu Tanida, manager
responsible for the managerial strategy in the hospital management headquarters of Tokyo Metropolitan
Government, says, “We are aware that something has to be done, but cannot come up with any remarkable
remedial measures at this point.”
Q: Considering University of Tokyo Hospital and including other hospitals, are there legal problems related toSubsection 1 of Article 19 of Medical Practitioners Law?
15

Doctor’s Duty of Responding to Call-up
Comparison with the attorney and such
Enforcement to conclude a contract
Presence or absence of a punishment; nature ofstipulations; historical changes

16Doctor’s Duty of Responding to Call-up
To legislate Article 19, paragraph (1)①Basis for an administrative punishment②Basis for civil compensation③Basis for criminal sanctions
Justification
Monopoly for the medical profession; Public nature of medicalcare
To make medical care better with a course of Sanctions- Typeaction

17

Justifiable Grounds
Situations acknowledged as justifiable grounds (i.e., situations to allow refusals)①Unable to see patients due to absence or sickness of the doctor②Medical care outside the doctor’s area of expertise and which the patient
acknowledges (but, if not acknowledged, the doctor is to provide emergency careand whatever he can possibly do)③To direct a patient to consult a doctor in a region where medical system on holidays
and nighttime is provided (except for a situation where an emergency measure isnecessary due to a critical condition of a patient)④Patient requesting of a hospital doctor to look after at the doctor’s home (exceptfor an emergency)
Situations not acknowledged as justifiable grounds (i.e., situations not to allow
refusals)①Slight exhaustion, drunkenness②Default on medical care fee③Off day, outside consultation hours; but, ref. ③ in the above④ Request for a house call when medical examination and treatment are necessary18

Attorney’s Duty to Accept Commission
Article 21 of Judicial Scriveners Law expressly stipulates for a
duty to accept a commission: “A judicial scrivener shall notrefuse a commission (except for affairs related to summary
court counsel or the like) without justifiable grounds.”
Additionally, even a maximum fine of ¥1 million is providedin Article 75.
Attorney= Freedom and independence from the client

19