Judgments of the Supreme Court

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2018 (Gyo-Hi) 215

Date of the judgment (decision)

2020.02.25

Case Number

2018 (Gyo-Hi) 215

Reporter

Minshu Vol. 74, No. 2

Title

Judgment concerning the case in which an atomic bomb survivor who has been subject to follow-up is found to be in a "condition that currently requires medical care" as prescribed in Article 10, paragraph (1) of the Atomic Bomb Survivors' Assistance Act

Case name

Case seeking revocation of a disposition to dismiss an application for recognition as having an atomic bomb-related disease

Result

Judgment of the Third Petty Bench, quashed and decided by the Supreme Court

Court of the Prior Instance

Nagoya High Court, Judgment of March 7, 2018

Summary of the judgment (decision)

1. In order for an atomic bomb survivor who has been under follow-up to be found to be "in a condition that currently requires medical care" as prescribed in Article 10, paragraph (1) of the Atomic Bomb Survivors' Assistance Act, it is necessary that the follow-up itself can be deemed to be conducted based on the actual necessity for treating the disease that is subject to the follow-up, or in other words, there are special circumstances such as where the follow-up is conducted because the relevant disease is a type of disease with high risk of worsening or recurrence and it is necessary to provide medical treatment properly depending on the state of its worsening or recurrence, thus, the follow-up itself is an essential action for treating the disease and it can be regarded as part of the aggressive treatment action.

2. Whether special circumstances under which the follow-up itself is an essential action for treating the disease that is subject to the follow-up and it can be regarded as part of the aggressive treatment action can be found to exist should be determined on a case-by-case basis, comprehensively taking into consideration the degree of medical probability as to the worsening or recurrence of the disease that is subject to the follow-up and the magnitude of the consequence of its worsening or recurrence, the purpose, frequency, and manner of the follow-up, the content of the instructions given by the doctor, and other circumstances due to which the follow-up should be considered necessary from a medical aspect.

3. An atomic bomb survivor who has been subject to follow-up for his or her chronic thyroiditis cannot be found to be "in a condition that currently requires medical care" as prescribed in Article 10, paragraph (1) of the Atomic Bomb Survivors' Assistance Act under the circumstances (1) to (4) below as described in the judgment:

(1) less than 10% of the total chronic thyroiditis cases are considered to lead to hypothyroidism, which is a sequela of chronic thyroiditis, and it does not seem to be common that hypothyroidism cases immediately result in serious consequences;

(2) no abnormal values were observed for the atomic bomb survivor in terms of the influential laboratory findings in diagnosing hypothyroidism, and this condition lasted for about 16 years after the atomic bomb survivor had been diagnosed as having chronic thyroiditis until the filing of an application under Article 11, paragraph (1) of that Act;

(3) it is considered that there is not yet a reliable means for a definitive and permanent cure of chronic thyroiditis; in general, follow-up with regular testing of about once a year is conducted, and thyroid hormone replacement therapy is conducted only if a decline in the thyroid function is observed; the atomic bomb survivor's chronic thyroiditis was under follow-up based on the diagnosis that follow-up was required about once every three months, but this follow-up was conducted only by observing the state of the atomic bomb survivor's thyroid through questioning and palpation and conducting blood tests and echocardiography when necessary; as a result of such follow-up, medication was not considered necessary during the period after the diagnosis of chronic thyroiditis until the filing of the application mentioned in (2) above; and

(4) it is difficult to say that the atomic bomb survivor was in such situation where the atomic bomb survivor's doctor was conducting any aggressive treatment action while identifying any specific signs of complications or sequelae, and this situation continued.

(Regarding 1 to 3, there is a concurring opinion.)

(Regarding 1 to 3) aggressive treatment action: a treatment action that is beyond the action of determining when is the appropriate time for providing treatment or general preventive action against the disease

References

(Regarding 1 to 3) Article 10, paragraph (1) and Article 11, paragraph (1) of the Atomic Bomb Survivors' Assistance Act



Atomic Bomb Survivors' Assistance Act

(Provision of Medical Care)

Article 10 (1) The Minister of Health, Labour and Welfare provides necessary medical care to atomic bomb survivors who suffered or contracted injuries or diseases that were induced by the damaging action of either of the atomic bombs and who are in a condition that currently requires medical care; provided, however, that if the relevant injury or disease was not induced by the radiation from either of the atomic bombs, the necessary medical care is provided only when the atomic bomb survivor is in a condition that currently requires medical care as a result of his or her ability to heal having been affected by the radiation from the relevant atomic bomb.

(Recognition)

Article 11 (1) A person who intends to receive medical care to be provided as prescribed in paragraph (1) of the preceding Article must in advance obtain recognition by the Minister of Health, Labour and Welfare to the effect that the relevant injury or disease was induced by the damaging action of the relevant atomic bomb.

Main text of the judgment (decision)

Of the judgment in prior instance, the part concerning the appellee of final appeal is quashed.

The claim filed by the appellee with regard to the quashed part mentioned in the preceding paragraph is dismissed.

The cost of the appeal to the second instance and the cost of the final appeal shall be borne by the appellee.

Reasons

Concerning the reasons for a petition for acceptance of final appeal stated by the representatives designated for final appeal, TATEUCHI Hisashi, et al.

1. In this case, the appellee of final appeal, an atomic bomb survivor who was exposed to radiation from the atomic bomb dropped in Nagasaki City, filed an action against the appellant of final appeal to seek, inter alia, revocation of the disposition (hereinafter referred to as the "Disposition") made by the Minister of Health, Labour and Welfare to dismiss her application filed for recognition under Article 11, paragraph (1) of the Atomic Bomb Survivors' Assistance Act (hereinafter referred to as the "Act"; such recognition is hereinafter referred to as "recognition as having an atomic bomb-related disease").

Recognition as having an atomic bomb-related disease is granted only if an atomic bomb survivor prescribed in Article 1 of the Act (the same applies hereinafter) is in a condition that currently requires medical care (need of medical care) and if the injury or disease that currently requires medical care was induced by the radiation of either of the atomic bombs or such injury or disease was induced by the damaging action of either of the atomic bombs other than radiation and the atomic bomb survivor is in the abovementioned condition as a result of his or her ability to heal having been affected by the radiation from the relevant atomic bomb (radiation-induced condition) (for the recognition under Article 8, paragraph (1) of the Act on Medical Care for Atomic Bomb Survivors prior to the repeal by Act No. 117 of 1994, see 1998 (Gyo-Tsu) No. 43, the judgment of the Third Petty Bench of the Supreme Court of July 18, 2000, Saibanshu Minji No. 198, at 529). The designated representatives for final appeal dispute whether or not the appellee can be found to be in need of medical care on the grounds that she has been under follow-up without receiving medication, etc. for her chronic thyroiditis, the disease subject to her application for recognition.

2. The outline of the facts lawfully determined by the court of prior instance (including publicly known facts) is as follows.

(1) Outline of the system for special allowance for medical care, etc. under the Act

A. As allowances for atomic bomb survivors who have any diseases that are found to be radiation-induced conditions, the Act provides for healthcare allowance (Article 27), special allowance for medical care (Article 24), and special allowance (Article 25). Among the abovementioned atomic bomb survivors, those who are not yet found to be in need of medical care are paid a healthcare allowance. This allowance is intended to provide a monthly fixed amount of allowance to atomic bomb survivors who contracted diseases accompanied by disorders caused by the effect of radiation from the relevant atomic bomb and are living with anxiety while having an extraordinary health condition, thereby ensuring their mental stability and stable course of recuperation, and contributing to their health and welfare. The special allowance for medical care is paid to atomic bomb survivors who are found to be in need of medical care among those who contracted diseases that are found to be radiation-induced conditions. This allowance was created by combining a medical allowance under Article 7 of the Act on Special Measures for Atomic Bomb Survivors, which was paid for the same purpose and objective as the healthcare allowance (see the minutes of the meeting of the Committee on Social and Labour Affairs, the House of Councillors, on May 16, 1968, during the 58th Diet session, No. 14, at 32), and the special allowance under Article 2, paragraph (1) of the same Act, which was paid as an allowance for a special living condition or health condition in which atomic bomb survivors were found to be in need of medical care (see the same minutes, at 31 and 32), into a new type of allowance under the Act. It is intended to cover expenses that atomic bomb survivors are forced to incur as a result of being in a condition that currently requires medical care, such as miscellaneous expenses for hospitalization and outpatient treatment and special expenses for nutrition supply, thereby giving consideration to their livelihood, and also to console their mind and improve the efficacy of medical care, thereby contributing to stabilizing their living. The special allowance is paid to atomic bomb survivors who were once found to be in need of medical care and granted recognition as having an atomic bomb-related disease but are later no longer found to be in need of medical care, and it is intended to give special health consideration to atomic bomb survivors, who are living with mental anxiety even after they are found to be not in need of medical care, for the prevention of recurrence of atomic bomb-related diseases, thereby contributing to stabilizing their living (see the minutes of the meeting of the Committee on Social and Labour Affairs, the House of Representatives, on April 25, 1974, during the 72nd Diet session, No. 21, at 22).

The amounts of healthcare allowance, special allowance for medical care, and special allowance under the Act have been revised as needed. The initial policy for revision was to set the amount of healthcare allowance as an amount equal to the amount of welfare pension for the elderly, set the amount of special allowance for medical care as an amount four times the amount of healthcare allowance plus 2,000 yen, and set the amount of special allowance as an amount 1.5 times the amount of healthcare allowance. Currently, index-linked revision is applied to these amounts (Article 29, paragraph (1) of the Act), but the relationships of the amounts of the three types of allowance as described above have almost remained unchanged.

B. Article 10, paragraph (1) of the Act provides that necessary medical care is provided to atomic bomb survivors who are found to be in need of medical care for their injuries or diseases for which they have obtained recognition as having an atomic bomb-related disease, and these atomic bomb survivors are supposed to pay no expenses for such medical care. Paragraph (2) of that Article specifies the scope of medical care to be provided to those atomic bomb survivors, by setting forth "medical examination" in item (i), "provision of medicine or treatment materials" in item (ii), and "medical procedures, surgery and any other treatment and therapy" in item (iii), respectively.

On the other hand, in the case of atomic bomb survivors who are not yet found to be in need of medical care for their injuries or diseases that are found to be radiation-induced conditions, or atomic bomb survivors who are no longer found to be in need of medical care for their injuries or diseases for which they have obtained recognition as having an atomic bomb-related disease, when they receive any types of medical care set forth in the items of Article 10, paragraph (2) of the Act from a medical institution designated by the prefectural governor pursuant to the provisions of Article 19, paragraph (1) of the Act or they receive any such medical care from a person other than such medical institution in an emergency or under other unavoidable circumstances, they may receive payment of medical expenses for general disease, up to the amount of expenses they incurred for the relevant medical care (however, in cases such as where they received or were eligible to receive benefits for medical care pursuant to certain provisions of laws and regulations, up to the amount equivalent to the amount of copayment calculated by deducting the amount of such benefits from the amount incurred) (see Article 18, paragraph (1) of the Act).

(2) Circumstances where the appellee was exposed to the atomic bomb, and the follow-up process for her chronic thyroiditis

A. The appellee is a woman born in February 1936, and at the time when an atomic bomb was dropped on August 9, 1945 (when she was nine years and five months old), she was at home in Tomachi, Nagasaki City, about 5.4 km from the center of the atomic bomb blast. In the afternoon on the same day, the appellee went to a place at a distance of 1.5 to 2 km from the center of the atomic bomb blast, and then returned home. The appellee is an atomic bomb survivor.

B. From around 1959, the appellee gradually felt dullness in her body, and in the course of time, she fell into a state of needing to lie down to rest in the afternoon while doing housework every day. However, she did not see a doctor because she did not tell her husband about her exposure to radiation from the atomic bomb.

The appellee lost her husband in 1987, and in January 1994, she was diagnosed as having chronic thyroiditis (Hashimoto's disease) at a general hospital in Nagoya City. She visited that hospital five times in that year alone, and after that until February 2010, she continuously received medical examination at the same hospital and received thyroid function tests as necessary in addition to the observation of the state of her thyroid through questioning and palpation. Thus, she received follow-up for her chronic thyroiditis constantly. In the abovementioned tests, since 1994, the appellee was repeatedly found to have positive anti-TPO antibodies (antibodies against thyroid peroxidase (TPO), a cellular component of thyroid), and since July 2006, she was found to have lower-than-normal levels of FT3 (free triiodothyronine (a thyroid hormone); when the secretion of the thyroid hormone is reduced, the FT3 level becomes lower) in almost every test. However, as for TSH (thyroid-stimulating hormone; when the level of thyroid hormone in the blood decreases, the TSH level becomes higher), which is considered important when determining whether the thyroid function is reduced, and FT4 (free thyroxine (a thyroid hormone); when the secretion of the thyroid hormone is reduced, the FT4 level becomes lower), no abnormal values were detected from January 1994 to February 2010.

The appellee's doctor stated in the medical record for November 2003 that the appellee "could be released from the follow-up," citing the fact that she tested negative in the thyroid test (measurement of anti-thyroglobulin antibodies; a negative reaction in the thyroid test signifies the reduction of anti-thyroglobulin antibodies) conducted on June 19, 2003, and the result of the thyroid echocardiography conducted on October 30, 2003, and as the future policy for dealing with her chronic thyroiditis, the doctor entered, "Only check her chronic thyroiditis in the atomic bomb survivor's health checkup as she is an atomic bomb survivor." However, on every subsequent occasion of medical examination, her doctor made entries regarding the elasticity of her thyroid in the medical records, and in the medical record dated July 24, 2004, the doctor entered, "Observation is required for Hashimoto's disease and uric blood" based on the findings on that day.

Subsequently, the appellee often complained about health problems such as feeling lightheaded, and around December 2006, her doctor made an entry in the medical record about the need for detailed examination if the symptoms of her head worsened. However, throughout the follow-up process described above, no medication was administered for her chronic thyroiditis.

C. On March 23, 2010, the appellee filed an application for recognition of her chronic thyroiditis as an atomic bomb-related disease, but the Minister of Health, Labour and Welfare made the Disposition to dismiss this application as of May 27, 2011.

In the written opinion dated December 11, 2009, prepared by the doctor of the abovementioned hospital and attached to the appellee's application, the doctor stated, as "findings of the current symptoms," that no swelling in the thyroid was observed and that TSH and FT4 were within normal levels but FT3 was lower than the normal level, and also stated, as the "content and period of necessary medical care," that a regular hospital visit of once every three months was required.

D. After the filing of the abovementioned application, the appellee continued to be under follow-up for her chronic thyroiditis at the abovementioned hospital. Since around July 2009, as it became difficult for her to visit that hospital far from her home, she came to visit a nearby clinic as well, and in April 2011, she changed her hospital to that nearby clinic. In the medical information report prepared by the doctor of the abovementioned hospital upon the occasion of this change of hospitals, the doctor stated: "Blood sampling tests have been conducted every three to six months. The patient's Hashimoto's disease has been stable without medication."

The doctor at the abovementioned clinic observed the state of the appellee's thyroid by palpation in every medical examination so that she could be introduced to a general hospital or any other hospital if she appeared to have any problems, and conducted echocardiography when swelling was suspected. As a result, in the echocardiography conducted in June 2011 and September 2013, mild swellings were observed in the appellee's thyroid.

(3) Medical knowledge on chronic thyroiditis

A. Chronic thyroiditis is a chronic inflammatory disease of the thyroid. It is considered as an autoimmune disease caused through the process wherein, as a result of an immune abnormality of the thyroid, antibodies against cellular components of the thyroid (autoantibodies against the thyroid) gradually damage the thyroid. Examples of autoantibodies against the thyroid include anti-TPO antibodies and anti-thyroglobulin antibodies.

In 70% to 80% of chronic thyroiditis cases (or 80% to 90% depending on the literature), the thyroid function is normal. Decline in the thyroid function ultimately leads to hypothyroidism. Hypothyroidism is diagnosed when any symptoms such as apathy, feeling tired, eyelid edema, feeling cold, gaining weight, slow movement, lethargy, declining memory, constipation, or a hoarse voice, is found in the clinic examination, and a low FT4 level and a high TSH level are found in the laboratory testing. In the thyroid hormone testing, it is a common practice to directly measure the FT3 and FT4 levels, but as a thyroid function index, the FT3 level is less significant than the FT4 level.

B. In general, complications and sequelae of chronic thyroiditis include thyrotoxicosis and painless thyroiditis in addition to hypothyroidism, and in the case of elderly patients, it causes thyroid lymphoma and often accompanies other autoimmune diseases.

As a prognosis of chronic thyroiditis, it is pointed out in literature that 6% of the patients subject to the ten-year follow-up progressed from euthyroidism to permanent hypothyroidism, and that the state of the thyroid function at only one point in time alone cannot decide the subsequent course. Another literature presents a case in which a 71-year-old female who had been under follow-up for 25 years after being diagnosed as having chronic thyroiditis at the age of 45 developed primary thyroid malignant lymphoma.

C. It is considered that there is not yet a reliable means for definitive and permanent cure of chronic thyroiditis. In general, in the case of euthyroidism, follow-up with regular testing of about once a year is conducted, and in the case of clear hypothyroidism, thyroid hormone replacement therapy is conducted.

3. The court of prior instance found that the appellee's chronic thyroiditis was a radiation-induced condition, and according to the facts mentioned above, it held as summarized below and revoked the Disposition, on the grounds that the appellee was found to be in need of medical care for her chronic thyroiditis and that the Disposition dismissing the appellee's application for recognition as having an atomic bomb-related disease was illegal.

The need for medical care should be understood as meaning that the injury or disease is in a condition requiring provision of any types of medical care set forth in the items of Article 10, paragraph (2) of the Act. According to this, since follow-up is conducted basically by way of "medical examination" set forth in item (i) of that paragraph, it can be said that the need for medical care is recognized as long as follow-up is conducted, irrespective of whether it is accompanied by any aggressive treatment action. Chronic thyroiditis does not heal by itself, and since it is likely to cause various complications and sequelae such as hypothyroidism, it is necessary to assess whether or not there is any sign of these conditions by conducting long-term follow-up. Accordingly, the appellee is found to be in need of medical care for her chronic thyroiditis, which has been under follow-up.

4. However, the determination of the court of prior instance mentioned above cannot be upheld for the following reasons.

(1) As mentioned in 2. (1) A. above, as allowances to atomic bomb survivors who contracted diseases that are found to be radiation-induced conditions, the Act provides for payment of a healthcare allowance if they are not found to be in need of medical care (Article 27, paragraph (1)), payment of a special allowance for medical care if they are found to be in need of medical care for the relevant diseases (Article 24, paragraph (1)), and payment of a special allowance if they are later no longer found to be in need of medical care (Article 25, paragraph (1) and Article 24, paragraph (4)). Thus, the Act can be understood as adopting an institutional framework for providing relief in a phased manner depending on whether there is the need for medical care.

As mentioned in 2. (1) A. above, the amount of special allowance for medical care to be paid only to atomic bomb survivors found to be in need of medical care was expected to be revised as needed as an amount four times the amount of healthcare allowance plus 2,000 yen, which is considered to be a generous level of assistance as compared to the special allowance for which 1.5 times the amount of healthcare allowance was considered to be an appropriate amount. The reason why the Act maintains such a generous level of assistance should be understood as that, although these three types of allowances have in common the purpose of easing atomic bomb survivors' mental anxiety, the special allowance for medical care, unlike the healthcare allowance and special allowance, is additionally intended to pay an allowance for a special living condition or health condition by covering expenses that atomic bomb survivors are forced to incur as a result of being in a condition that currently requires medical care, such as miscellaneous expenses for hospitalization and outpatient treatment and special expenses for nutrition supply, thereby giving consideration to their livelihood.

In that case, within the abovementioned institutional framework for providing relief in a phased manner, it is appropriate to consider that the need for medical care, which is one of the requirements for receiving payment of a special allowance for medical care that is positioned under the Act as a particularly generous assistance, means that an atomic bomb survivor is in a condition that meets the purpose of payment of this allowance, that is, paying this allowance to those who actually need an action for medical care, and further it is appropriate to consider that whether or not the need for medical care is found should be determined in light of such factors as the reason why the Act provides that particularly generous assistance is to be provided only when an atomic bomb survivor is found to be in need of medical care, the purpose of payment of this allowance, and the circumstance under which the payment of this type of allowance] was decided. This reasoning matches the fact that the Act, as mentioned in 2. (1) B. above, provides for special treatment by providing medical care only to atomic bomb survivors who are found to be in need of medical care among those who have obtained recognition as having an atomic bomb-related disease, and it is also consistent with the natural understanding of the meaning of the wording in Article 10, paragraph (1) of the Act, "who are in a condition that currently requires medical care."

On the other hand, the court of prior instance ruled that the need for medical care should be understood as meaning that the injury or disease that is found to be a radiation-induced condition is in a condition requiring provision of any types of medical care set forth in the items of Article 10, paragraph (2) of the Act. However, the items of that paragraph only specify the scope of medical care to be provided to atomic bomb survivors who have obtained recognition as having an atomic bomb-related disease and who are found to be in need of medical care. Therefore, it is inappropriate to consider that the need for medical care can be found only if any of the measures set forth in the items of that paragraph is considered to be needed.

(2) In line with what is discussed above, the Court examines in what case an atomic bomb survivor who is under follow-up can be found to be in need of medical care. Considering that follow-up is ambiguous in concept and is conducted for various purposes, and that some cases of follow-up are conducted only for the purpose of determining when is the appropriate time for providing treatment, it cannot immediately be said that the need for medical care is found only because the atomic bomb survivor has been under a medically necessary and reasonable follow-up. In light of the reason why the Act provides for payment of a special allowance for medical care and other factors, it is appropriate to consider that in order for an atomic bomb survivor who has been under follow-up to be found to be "in a condition that currently requires medical care" as prescribed in Article 10, paragraph (1) of the Act, it is necessary that the follow-up itself can be deemed to be conducted based on the actual necessity for performing a treatment action, or in other words, there are special circumstances such as where the follow-up is conducted because the disease that is subject to the follow-up is a type of disease with high risk of worsening or recurrence and it is necessary to provide medical treatment properly depending on the state of its worsening or recurrence, thus, the follow-up itself is an essential action for treating the disease and it can be regarded as part of an aggressive treatment action (meaning a treatment action that is beyond the action of determining when is the appropriate time for providing treatment or general preventive action against the disease; the same applies hereinafter).

Whether such special circumstances can be found to exist should be determined on a case-by-case basis, comprehensively taking into consideration the degree of medical probability as to the worsening or recurrence of the disease that is subject to the follow-up and the magnitude of the consequence of its worsening or recurrence, the purpose, frequency, and manner of the follow-up, the content of the instructions given by the doctor, and other circumstances due to which the follow-up should be considered necessary from a medical aspect.

(3) When this is applied to the present case, according to the facts mentioned above, although it is said that chronic thyroiditis may cause complications or sequelae in some cases, less than 10% of the total is considered to lead to hypothyroidism, and what is more, it does not seem to be common that hypothyroidism cases immediately result in serious consequences. In addition, regarding the degree of medical probability of chronic thyroiditis causing complications or other conditions, no specific circumstances can be found that are sufficient to find that it is typically high. Even looking at the follow-up on the appellee's case, no abnormal values were observed in terms of the TSH and FT4 levels, which are influential laboratory findings in diagnosing hypothyroidism, and this condition lasted for about 16 years after she had been diagnosed as having chronic thyroiditis until she filed an application for recognition as having an atomic bomb-related disease. Looking at the developments in the situation after the filing of the application, although mild swellings were observed in her thyroid twice, it seems that she was not introduced to a general hospital or treated otherwise because of any problems.

Furthermore, it is considered that there is not yet a reliable means for a definitive and permanent cure of chronic thyroiditis. In general, follow-up with regular testing of about once a year is conducted, and thyroid hormone replacement therapy is conducted only if a decline in the thyroid function is observed. The appellee's chronic thyroiditis was under follow-up based on the diagnosis that follow-up was required about once every three months, but this follow-up was conducted only by observing the state of her thyroid through questioning and palpation and conducting blood tests and echocardiography when necessary. As a result of such follow-up, medication was not considered necessary during the period after the appellee had been diagnosed in 1994 until she filed an application for recognition as having an atomic bomb-related disease.

As of November 2003, the appellee's doctor judged that it would be sufficient to check her chronic thyroiditis in the atomic bomb survivor's health checkup, and, although in July 2004, the doctor changed the policy and recorded that observation was required, the doctor continued medical examination basically to merely see whether there was any abnormality in her condition, with the intention to conduct detailed examination if her condition became worse. After all, it is difficult to say that she was in such situation where her doctor was conducting any aggressive treatment action for her chronic thyroiditis while identifying any specific signs of complications or sequelae of chronic thyroiditis, and this situation continued.

Taking all these circumstances into consideration, it is difficult to say that the follow-up on the appellee's chronic thyroiditis was conducted because of a high medical probability that the worsening of this disease would result in a serious consequence, and it is natural to regard it as nothing more than an action to see whether the appellee developed hypothyroidism or any other complication or sequela that could require aggressive treatment action, rather than as part of an aggressive treatment action for chronic thyroiditis. Therefore, it cannot be found that any special circumstances mentioned above existed.

According to the above, the appellee cannot be found to be in need of medical care for her chronic thyroiditis, which was the subject disease in the application dismissed by the Disposition.

5. The determination of the court of prior instance that is contrary to the above contains a violation of laws and regulations that obviously affects the judgment. The designated representatives' arguments are well-grounded to the extent that they point out as above, and the judgment in prior instance should inevitably be quashed for the part concerning the appellee. According to the explanation given above, the appellee's claim for revocation of the Disposition is groundless, and therefore, the judgment in first instance is justifiable for dismissing it, and the appellee's appeal to the court of second instance should be dismissed with regard to the quashed part.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion by Justice UGA Katsuya.

The concurring opinion by Justice UGA Katsuya is as follows.

1. I consider that there can be various arguments concerning what a framework for providing allowances to atomic bomb survivors should be, but, according to the interpretation of the existing law, I had no option but to agree with the court opinion. The court opinion considers that whether an atomic bomb survivor who has been under follow-up can be found to be in need of medical care should be judged by determining on a case-by-case basis whether there are special circumstances where the follow-up itself is an essential action for treating the disease that is subject to the follow-up and it can be regarded as part of an aggressive treatment action. I would like to stress that this opinion does not mean that the existence of such special circumstances should be denied for the follow-up for any chronic thyroiditis case, nor does it by any means preclude the possibility that the abovementioned special circumstances can be found to exist in the appellee's case, depending on how the state of her disease or other circumstances change in the future.

2. The appellant argues that since general examination that is conducted during a health checkup (meaning the health checkup prescribed in Article 7 of the Act; the same applies hereinafter) can meet the definition of "medical examination" set forth in Article 10, paragraph (2), item (i) of the Act, if it is considered that the requirement of being in need of medical care can be satisfied as long as any action that is equivalent to the provision of medical care under the same item is performed, this could lead to the consequence that an atomic bomb survivor can be found to be in need of medical care just by receiving a health checkup. I would like to give some supplementary comments on this point.

The court opinion makes a judgment from a substantive perspective as to whether the condition in which the appellee has been subject to follow-up on her chronic thyroiditis can be regarded as a "condition that currently requires medical care" referred to in Article 10, paragraph (1) of the Act. As far as a health checkup is concerned, even if an atomic bomb survivor receives any guidance (meaning the guidance prescribed in Article 9 of the Act; the same applies hereinafter) by disclosing his or her previous disease in a health checkup, this alone does not necessarily mean that the atomic bomb survivor is in a "condition that currently requires medical care"; and if follow-up is conducted according to the guidance given based on the results of the health checkup, it may be necessary to judge whether the condition in which the atomic bomb survivor is subject to the follow-up can be regarded as a "condition that currently requires medical care," in light of the criteria presented in the court opinion.

Presiding Judge

Justice UGA Katsuya

Justice TOKURA Saburo

Justice HAYASHI Keiichi

Justice MIYAZAKI Yuko

Justice HAYASHI Michiharu

(This translation is provisional and subject to revision.)