In his testimony before the House Oversight Committee about Toyota's massive recall efforts, Akio Toyota will learn that you can't win such an encounter. But you can lose. Shorenstein APARC Associate Director for Research Daniel C. Sneider comments on a Japanese CEO learning the lessons of American business the hard way.

Malpractice liability, along with medical technology and payment system distortions, regularly figures among the most-cited reasons for escalating health-care spending in the United States. On the one hand, Harvard economist Amitabh Chandra conservatively estimates that upwards of $60 billion, or 3 percent of total health care costs ($1.8 trillion), is spent annually as a result of direct litigation and indirect defensive medicine costs. On the other hand, tort reform advocates place the figure at $200 billion by extrapolating, to the entire U.S. population, the results of research conducted by Stanford professor Dan Kessler and Mark McClellan. Their 1996 study shows that tort reforms reduced provider liability costs for Medicare heart patients by 5 to 9 percent.

At the heart of these debates is the following question. Does medical malpractice liability achieve its dual goal of compensating victims of medical injuries and deterring medical errors, or does it merely encourage wasteful defensive medicine without improving patient health? Despite considerable empirical research, there is little evidence that malpractice litigation deters medical negligence. The evidence is much stronger—though still hotly debated—that malpractice fears actually encourage physicians to engage in defensive medicine. My work at Shorenstein APARC explores whether malpractice pressures affect physician behavior, patient health, and health care costs in Asia. Studying physicians’ response to legal changes in Taiwan, I find that greater malpractice liability may, under certain circumstances, prompt physicians to perform more services without necessarily improving patient health.

In particular, I focus on how increased medical malpractice liability affects physicians in Taiwan who provide treatment to pregnant women. I have studied how a series of court rulings as well as an amendment to Taiwanese law between 1997 and 2004 impacted physicians’ test-ordering behavior and decisions to perform Caesarian sections. Traditionally, Taiwanese doctors are held accountable for medical malpractice under two bodies of law: tort law in the Civil Code, and criminal law for harm resulting from negligent acts in the course of professional operations. The latter, prosecutorial approach is rare among industrialized nations.

In January 1998, a Taipei District Court decision in favor of plaintiffs in a civil suit for damages sent shockwaves through the medical community. The district court judge disregarded the traditional tort requirement of proving the defendant’s negligence (or fault), and applied the “strict liability” doctrine of the Consumer Protection Law to impose liability on a medical provider without any showing of wrongdoing. The court decision—subsequently affirmed by the Taipei High Court on September 1, 1999 and by the Supreme Court on May 10, 2001—sparked resentment among medical professionals. Passions flared in heated debates between medical and legal scholars about whether medical services should be considered a covered “service” under the Consumer Protection Law. Economists and legal academics questioned whether the traditional justifications for imposing strict liability apply in the highly unpredictable practice of medicine, especially in obstetrics. The saga concluded in April 2004, when the legislature amended the Medical Law to require negligence or fault in medical malpractice cases.

My research considers the effect of these court rulings and legal amendments on physicians’ test-ordering behavior and their propensity to perform Caesarean sections. I identify two sources of variation in perceived risks of malpractice liability: (1) the differences between the level of exposure to malpractice risks due to the ownership structure and size of the physicians’ place of practice; and (2) the differences in perceived risks based on the physicians’ geographical location.

My results are consistent with the existence of defensive medicine. First, with respect to their propensity to increase laboratory tests and reduce Caesarean sections, physicians who own their clinics (“physician-owners”) in Taiwan reacted more strongly to the legal changes than did physicians who are salaried employees at larger hospitals (“nonowners”). Physician-owners’ behavior did not change, however, in discretionary expenditures that were not associated with defensive medicine. Second, physician-owners working in areas under the jurisdiction of the Taipei District Court reacted more strongly to legal change than did those practicing in Kaohsiung, Taiwan’s second largest city, at the opposite end of the island.

The negative connection between the likelihood of Caesarean deliveries and increased malpractice liability deserves special mention, since most published studies find a positive association between malpractice liability risks and Caesarean rates. However, economists Janet Currie and Bentley MacLeod at Columbia University suggest that reforms in which liability is closely aligned with defendant’s actual levels of care may produce the opposite effect. In the Taiwan context, increased medical malpractice liability accrues directly to the physician-owners. Since Caesarean sections are generally riskier than natural deliveries, it seems logical that higher tort liability in Taiwan may actually decrease the likelihood of deliveries by Caesarean sections. In this sense, my study confirms Currie and MacLeod’s predictions and empirical results.

My work contributes to our understanding of health law and policy in several concrete ways. First, I add support to the existence of defensive medicine, even in a non-Common Law jurisdiction. Since I focus on Taiwan—an environment that lacks malpractice insurance, in which physicians are either owners or employees at providers of varying sizes—my research isolates the pure effect of malpractice liability to a greater extent than do many current studies. Second, I show that interaction between the payment and legal systems may either enhance or mitigate the hypothetical pure effects of legal policies. In a fee-for-service system, physicians subject to higher malpractice risks appear much more willing to increase laboratory tests than to reduce profitable Caesarean sections. Third, my research indicates that, by altering physicians’ exposure to risks, different organizational forms and ownership structures of health care provision may affect defensive medicine at differing rates.

In sum, the practice of “defensive medicine” appears not to be a uniquely American phenomenon. Indeed, it may also play a role in health care cost escalations in Asia, especially under heightened physician liability regimes.

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Shorenstein APARC Dispatches are regular bulletins designed exclusively for our friends and supporters. Written by center faculty and scholars, Shorenstein APARC Dispatches deliver timely, succinct analysis on current events and trends in Asia, often discussing their potential implications for business.

Since the Democratic Party of Japan came to power in August 2009, upsetting fifty years of conservative rule, U.S.-Japan relations have been on rocky ground. It would seem that the DPJ is upending decades old policies, hewing its own path with the United States, China, and the Asia-Pacific region. As Shorenstein APARC Director for Research Daniel Sneider notes, Japan’s new tack not only has caught the United States flat-footed, but also has other countries in the Asia-Pacific worried. Most importantly, Tokyo seems to be making uncharacteristically friendly overtures to Beijing. But it would be wrong to assume that Sino-Japan relations are really much improved. From oil and gas rights in the East China Sea to China’s military modernization there are still plenty of points of contention. Moreover, the much-contested issue of U.S. marines stationed on Okinawa remains the biggest deterrent to North Korean aggression and Chinese expansion – two fears not far from Tokyo’s mind. This is not to say U.S.-Japan relations will return to the status quo, but that the interlocutors are likely to recall the reason for such a persistent alliance.

The dramatic end to Japan's half-century of conservative rule in a late August election led almost immediately to a public spat with the United States. An inward-looking Japan that had reflexively followed the American lead suddenly was no longer an obedient ally.

At a time when the US was trying to woo a recalcitrant China to become a "strategic partner", Japan's insistence on reopening an agreement over US military bases seemed to upset the regional balance. But there are recent signs of a concerted effort on both sides to put underlying strategic interests back in the forefront, propelled in part by the recent eruption of frictions between China and the US.

The row began with the newly elected Prime Minister Yukio Hatoyama's call for more "equal" relations with the US, his advocacy of an East Asian Community à la the EU, and his focus on repairing ties with China. Put together, some saw a nascent urge to abandon the post-war security alliance. A senior State Department official went so far as to tell the Washington Post in late October that the "the United States had ‘grown comfortable' thinking about Japan as a constant in US relations in Asia. It no longer is, he said, adding that ‘the hardest thing right now is not China, it's Japan.'"

The trigger was growing frustration over the Hatoyama government's handling of the relocation of the US Marine air base at Futenma on Okinawa. The Democratic Party of Japan (DPJ) consistently opposed the deal to relocate the base elsewhere within Okinawa, expressing sympathy for the disproportionate burden of the US military presence in Japan born by Okinawans. American officials were loathe to reopen an agreement that had taken years to negotiate and believed the Japanese government exaggerated its domestic political constraints.

At the same time, Japan seems eager to hew its own course with China, to improve relations and begin to build the foundation for a new Asian community. If one is to believe US officials, alarm bells have been ringing among their allies and others in Asia over the rift with Japan. The talk of building a regional organization that might exclude the US made Singapore, Australia, South Korea, the Philippines and even Vietnam worried that this would only aid Chinese ambitions.

Meanwhile, the Obama administration itself was ardently wooing China. President Obama, on the eve of a trip in November, spoke of creating a "strategic partnership." In Beijing, the President avoided public finger wagging. Discussion of difficult issues such as human rights, Tibet and sanctions against Iran were conducted largely, if at all, behind closed doors.

Given their own pursuit of Chinese partnership, American officials could hardly object to Tokyo's efforts along the same lines. In public, they said this is not a zero sum game, that an easing of Sino-Japanese tensions could aid security and stability in the region for everyone. But some US officials soon saw evidence of Sino-Japanese collusion to push the US out of Asia. Privately they pointed to what was considered a telling moment following a trilateral summit of Chinese, Japanese and South Korean leaders in Tianjin in October. Talking to reporters after the meeting, Hatoyama had spoken about Japan's desire to lessen its "dependence" on the US. American officials considered Hatoyama's actions a gross display of obeisance to the Chinese.

Accusations that Japan was drifting into Chinese arms grew louder after DPJ Secretary General Ichiro Ozawa led a group of about 140 lawmakers on an adulatory visit to China in early December. Then Hatoyama and Ozawa raised hackles when they pushed for the Emperor to receive a visiting Chinese senior official, the heir apparent for leadership, Xi Jinping. However, these depictions of Tokyo lurching toward Beijing ignore the gradual evolution of Japanese policy and the deep-seated rivalry that persists.

Sino-Japanese relations reached a low point five years ago after anti-Japan demonstrations were apparently sanctioned by Chinese authorities. Unresolved wartime historical issues drove those outbursts, prompted by Prime Minister Junichiro Koizumi's visits to the Yasukuni shrine, which honors Japan's war dead. Disputes over oil and gas rights in the East China Sea threatened to explode. And China launched a campaign to block Japan's bid for permanent membership in the UN Security Council.

Japanese policymakers began to worry about the impact of these tensions on Japan's growing economic interdependence with China. They were critical of Koizumi's one-sided focus on the US-Japan security alliance.

"To weather the wild seas of the 21st century, Japan's diplomacy must have two elements: the Japan-US alliance and a Japan-China entente," wrote Makoto Iokibe, a defense specialist who now heads the Japanese Defense Academy, in the summer of 2006. "A combination of a gas field accord and a depoliticized Yasukuni issue would provide Japan and China with a clear view for the joint management of East Asia."

Beginning in late 2006, a succession of Japanese administrations has made concerted efforts to repair ties with Beijing and Seoul. Though the atmosphere with China has improved, substantive differences remain. In January, Japan's foreign minister warned that Tokyo would take action if China continued to violate a 2008 deal to develop oil and gas fields jointly. When Ozawa met the Chinese defense minister in December, he said the Japanese see China's military modernization as a threat. Ozawa suggested that if such fears were not eased, Japan might be prompted to undertake its own arms build up.

The Hatoyama government has also moved to upgrade ties, including security links, with Asian powers that share a fear of China, including India, Indonesia and South Korea. Ozawa stopped in Seoul after his visit to China where he apologized for Japan's colonial rule in Korea and pledged to push through legislation granting voting rights to Korean residents in Japan, an issue of great importance to Koreans and opposed by conservatives in Japan.

Recent events seem to have caused the US to reassess its handling of relations in Northeast Asia. There is growing evidence of an emboldened China that seems to interpret America's bid for a strategic embrace with the country as a sign of weakness. The authorities in Beijing took a tougher line toward internal dissent, openly clashed with the US at the climate change talks in Copenhagen, balked at cooperation on sanctions against Iran, and brushed off American protests over evidence of cyber attacks on Western firms.

After all this, America has begun to soften its tone toward Tokyo. Officials pledge patience as the new government looks for a solution to the base problem, while also mounting a public effort to convince Japan that the Marine presence in Okinawa is key to "deterrence" of North Korea and China. There is a renewed emphasis on broadening the security agenda to include other issues, from cyber security to climate change. Hatoyama, too, has emphasized that the Japan-US alliance remains "a cornerstone for Japan to enhance its cooperative relations with other Asian countries, including China."

Whether any real lessons have been learned in Tokyo or Washington remains to be seen. But perhaps the turn in Sino-US relations has reminded people in Tokyo and Washington that there remains a strategic purpose to the alliance.

On January 21, scholars, along with government and business leaders from Japan and the United States, including U.S. Ambassador to Japan Mr. John V. Roos, came together for a transnational "Dialogue on Japan's Entrepreneurial Ecosystem." The event, which took place over Cisco Systems' TelePresence technology and simultaneously connected participants in Tokyo, San Jose, and Stanford, was an opportunity for SPRIE Researcher Robert Eberhart and SPRIE Co-director William F. Miller present new data on Japan's entrepreneurial climate.  

The data shed new light on the formation of new companies in Japan over the past ten years and is part of continuing research on Japanese entrepreneurship being undertaken by the SPRIE-Stanford Project on Japanese Entrepreneurship (SPRIE-STAJE). The dialogue presentation can be downloaded from the SPRIE website.