How far should medical responsibility go?

March 18, 2019

Lawsuit over 3/11 triage decision shakes medical groups

http://www.asahi.com/ajw/articles/AJ201903180047.html

By SUSUMU YOSHIDA/ Staff Writer

SENDAI--A lawsuit over an elderly woman’s death in the chaos following the 2011 Great East Japan Earthquake has prompted medical professionals to seek legislation absolving them of responsibility for judgment errors made during triage.

Family members of the 95-year-old woman from Ishinomaki, Miyagi Prefecture, said she died after the Japanese Red Cross Ishinomaki Hospital gave her the lowest priority for treatment after the disaster struck on March 11, 2011.

In the lawsuit filed in October 2018 at the Sendai District Court, the family is demanding about 32 million yen ($286,720) for compensation, saying the hospital is responsible for her death.

Opening arguments in the lawsuit were heard in January.

Medical associations and legal experts say that a ruling against the hospital would not only be unfair, but it could also affect the way emergency medical staff try to save people’s lives after disasters.

“It is difficult to make the absolutely right decision in an extremely short time when diagnostic tools are unavailable,” said Yuichi Koido, secretariat of the Japan Disaster Medical Assistance Team (DMAT), an organization commissioned by the health ministry. “It will be impossible to conduct triage under such circumstance if personnel are held responsible for a mistake.”

Koido also heads the Japanese Association for Disaster Medicine (JADM), which decided at a board meeting on March 17 to make recommendations for legislation to protect triage staff from litigation.

According to the lawsuit, the elderly woman was among hundreds of people taken to the hospital on March 14 after the magnitude-9.0 earthquake and tsunami struck the Tohoku region.

During triage in disasters or mass casualty situations, victims are given color tags depending on the urgency of their need for medical treatment.

Black tags are used for people who have already died or those with such severe injuries that they cannot survive even with the care available.

Patients given red tags have a chance of survival but only with immediate treatment. They are given the top priority.

Yellow tags are reserved for patients who are not in immediate danger of death but require observation and hospital care.

Green tags represent the lowest priority level, and they are for people deemed not in need of medical care by a specialist.

Medical personnel are expected to make such triage decisions in less than 30 seconds per patient.

The elderly woman received a green tag at the front entrance of the hospital building. She died three days later after developing dehydration-related symptoms at the hospital while waiting to be transported to a shelter.

Her family claims the woman should have been given at least yellow status because she had been certified by the municipal government as being in need of level-five nursing care. The plaintiffs noted that her doctor at the Ishinomaki hospital had provided an opinion for the certification.

Level-five means the person is unable to walk or communicate properly. The family said the woman also could not eat on her own.

According to the lawsuit, the hospital is responsible for her death because she was left unattended and unable to eat or drink.

The hospital has rejected the family’s arguments.

“We believe that either a doctor or a nurse conducted the triage following proper procedures,” a representative of the hospital said. “Primarily, those who are dismissed in triage as not in need of medical treatment are supposed to either go home or move to a shelter.”

The representative also noted that the hospital at that time was overwhelmed by up to 600 disaster victims.

“We were in short supply of necessary resources. We gave her an IV. That’s the best we could do,” the representative said.

Koju Nagai, a lawyer who used to head the disaster assistance team of the Japan Federation of Bar Associations (Nichibenren), has long pointed out potential legal problems involving disaster triage.

“Medical personnel are under duty of care in normal circumstances, and there is no clause to ease it even during times of disaster,” Nagai said. “There is always a risk that they will be held accountable for an error, even if it’s an unavoidable one.”

If triage decisions by nurses or rescue personnel are considered “diagnostic actions,” that could constitute a violation of the Medical Practitioners Law, according to Nagai.

“To prevent emergency medical care personnel from feeling daunted, there should be rules and regulations to clarify that they will not be held responsible for a mistake unless it’s done intentionally or by gross negligence,” Nagai said.

Toshihiro Suzuki, a lawyer who has long been involved in medical-related lawsuits and is a special adviser to the president of Meiji University, said: “First there needs to be a public relief system streamlined for cases that inflict a sacrifice by a patient. Then, there should be a law to clearly exempt doctors and hospitals from liability.”