Physicians' explanatory behaviours and legal liability in decided medical malpractice litigation cases in Japan

A physician's duty to provide an adequate explanation to the patient is derived from the doctrine of informed consent and the physician's duty of disclosure. However, findings are extremely limited with respect to physicians' specific explanatory behaviours and what might be regarded as a breach of the physicians' duty to explain in an actual medical setting. This study sought to identify physicians' explanatory behaviours that may be related to the physicians' legal liability.

We analysed legal decisions of medical malpractice cases between 1990 and 2009 in which the pivotal issue was the physician's duty to explain (366 cases). To identify factors related to the breach of the physician's duty to explain, an analysis was undertaken based on acknowledged breaches with regard to the physician's duty to explain to the patient according to court decisions. Additionally, to identify predictors of physicians' behaviours in breach of the duty to explain, logistic regression analysis was performed.

When the physician's explanation was given before treatment or surgery (p = 0.006), when it was relevant or specific (p = 0.000), and when the patient's consent was obtained (p = 0.002), the explanation was less likely to be deemed inadequate or a breach of the physician's duty to explain. Patient factors related to physicians' legally problematic explanations were patient age and gender. One physician factor was related to legally problematic physician explanations, namely the number of physicians involved in the patient's treatment.

These findings may be useful in improving physician-patient communication in the medical setting.