2000.02.29

1998 (O) 1081

Minshu Vol. 54, No. 2, at 582

Judgment ruling that the doctor has tort liability in the case where, despite the fact that the patient has a firm intention of refusing to receive a blood transfusion in any case because of her religious beliefs, the doctor performed the operation for the patient without explaining to her that the hospital adopts a policy of providing a blood transfusion in the event that there is no alternative means to save the patient's life, and actually provided the patient with a blood transfusion

Jokoku appeal case to seek damages and incidental jokoku appeal case

Judgment of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of February 9, 1998

Where a patient who has a firm intention of refusing to receive a blood transfusion in any case because of her religious beliefs came to stay at the hospital with the hope of receiving an operation to remove a liver tumor without receiving a blood transfusion, if the doctor, knowing such patient's intention and being aware of the possibility that any event requiring a blood transfusion might occur during the operation, performed the operation for the patient without explaining to her that the hospital adopts a policy of providing a blood transfusion in the event that there is no alternative means to save the patient's life, and actually provided the patient with a blood transfusion, the doctor shall be liable for damages under tort law so as to compensate for emotional distress suffered by the patient from having been deprived of the right to decide whether or not to receive the operation.

Articles 709 and 710 of the Code of Civil Procedure
Article 709 of the Civil Code
A person who intentionally or negligently violates the right of another is bound to make compensation for damage arising therefrom.

Article 710 of the Civil Code
A person who is liable to compensate damage in accordance with the provisions of the preceding Article shall make compensation even for non-pecuniary damage, irrespective of whether such damage was caused to the person, liberty or reputation of another or to his property rights

The jokoku appeal and the incidental jokoku appeal shall be dismissed.
The jokoku appellant and the incidental jokoku appellant shall bear the cost for the jokoku appeal and the cost for the incidental jokoku appeal respectively.

I. Concerning the grounds for the jokoku appeal argued by the attorneys for jokoku appeal HOSOKAWA Kiyoshi, TOMITA Yoshinori, SAIKI Toshifumi, NAGATANI Norio, YAMANAKA Masato, OTAKE Takashi, HAYASHI Keisuke, NAKAGAICHI Kenji, KONDO Hideo, WATABE Yoshio, YAMAGUCHI Seijiro, HIRAGA Yukichi, HOSHI Shoichi, YASUOKA Kuninobu, KOBAYASHI Takayuki, and TAKAYANAGI Yasuo
I. The outline of the facts legally determined by the court of the second instance is as follows.
1. B, the deceased, was born on January 5, 1929, and became a member of the Jehovah's Witnesses in 1963. Since then, B had a firm will refuse to receive a blood transfusion in any case because of her religious beliefs. B's husband, Jokoku Appellee/Incidental Jokoku Appellant A (hereinafter referred to as "Jokoku Appellee A"), is not a member of the Jehovah's Witnesses but respects B's intention. B's son, Jokoku Appellee/Incidental Jokoku Appellant C (hereinafter referred to as "Jokoku Appellee C"), is a member of the Jehovah's Witnesses.
2. E worked as a doctor at Hospital D, which was established and managed by the jokoku appellant/incidental jokoku appellee (hereinafter referred to as the "jokoku appellant"). Among the members of the Medical Liaison Council of the Jehovah's Witnesses (hereinafter referred to as the "Liaison Council"), which finds doctors who are cooperative with Jehovah's Witnesses members, E was famous for having experience in performing operations without providing blood transfusions. However, according to Hospital D's policy for performing surgical operations for patients who were members of the Jehovah's Witnesses, the hospital would respect the patients' intention of refusing to receive blood transfusions and refrain from providing blood transfusions as much as possible, but in the event that there was no means to save a patient's life other than providing a blood transfusion, it would provide the patient with a blood transfusion irrespective of whether or not the patient or his/her family approved such treatment.
3. On June 17, 1992, B came to stay at Hospital F, and on July 6, 1992, she was informed that she had a malignant liver angioma. As the doctor told her that it was impossible to perform an operation without providing a blood transfusion, B left the hospital on July 11, and looked for a medical institution where she would be able to receive an operation without receiving a blood transfusion.
4. On July 27, 1992, a member of the Liaison Council informed Doctor E of the fact that B seemed to be suffering from a liver cancer, and requested E to examine her. Doctor E accepted this request and told to the member that it would be possible to perform an operation without providing a blood transfusion if the caner had yet to metastasize, so the patient should be examined immediately.
5. On August 18, 1992, B was admitted to Hospital D, and on September 16, 1992, she received an operation to remove a liver tumor (hereinafter referred to as the "Operation"). Before the Operation, B, Jokoku Appellee A, and Jokoku Appellee C informed Doctor E and Doctors G and H also working at Hospital D (the three doctors shall hereinafter be collectively referred to as the "Doctors") of B's intention of refusing to receive a blood transfusion. On September 14, Jokoku Appellee C handed over a hold-harmless statement signed by B and Jokoku Appellee A to Doctor E. The hold-harmless statement stated that B would refuse to receive a blood transfusion and they would not hold the doctors or other hospital employees liable for any damage arising from not providing a blood transfusion.
6. On September 16, 1992, having prepared for any possible event requiring a blood transfusion, the Doctors performed the Operation. During the Operation, the amount of bleeding reached about 2,245 milliliter at the stage when the Doctors removed the tumor from the diseased part, so they determined that it was highly likely that they would be unable to save B's life without providing a blood transfusion, and therefore provided B with a blood transfusion.
7. After being discharged from Hospital D, B died on August 13, 1997. The jokoku appellees/incidental jokoku appellants (hereinafter referred to as the "jokoku appellees") succeeded to B.

II. According to the facts mentioned above, we make a determination on whether or not the jokoku appellant should be held to have tort liability against B.
In this case, the Doctors' act of having tried to perform a medically appropriate operation so as to remove B's liver tumor can be regarded as natural conduct that is required of those who take charge of people's life and health. However, when a patient has an expressed intention of refusing to receive any medical treatment involving a blood transfusion by reason that receiving a blood transfusion is against his/her religious beliefs, the right to make such a decision must be respected as part of the patient's personal rights. Given the facts that B had a firm intention of refusing to receive a blood transfusion in any case because of her religious beliefs and she came to stay at Hospital D with the hope of receiving an operation to remove a liver tumor without receiving a blood transfusion, it is reasonable to construe that the Doctors, when they determined that they could not deny the possibility that there would be no means to save B's life during the Operation other than providing a blood transfusion, should have explained to B that Hospital D adopted a policy of providing a blood transfusion in such event, thereby leaving it to B to decide whether or not to receive the Operation by the Doctors while staying at Hospital D.
Nevertheless, although the Doctors, during about a month before the Operation, became aware of the possibility that an event requiring a blood transfusion might occur during the Operation, they performed the Operation without explaining Hospital D's policy to B or informing B and the jokoku appellees of the possibility of providing a blood transfusion, and actually provided B with a blood transfusion according to the hospital's policy. Consequently, the Doctors should be deemed to have deprived B, due to the failure to explain, of the right to decide whether or not to receive the Operation, and they should be held responsible for having violated B's personal rights in this respect and therefore liable to compensate for mental distress suffered by B from such violation. Furthermore, the jokoku appellant should be held liable for the tort under Article 715 of the Civil Code. The judgment of the second instance that goes along with this reasoning can be accepted, and it does not contain such illegality as argued by the jokoku appellant. The jokoku appellant's argument cannot be accepted.

Concerning the grounds for the jokoku appeal argued by the attorneys for incidental jokoku appeal AKAMATSU Takeshi, NOGUCHI Isamu, and ISHIOROSHI Masaki
The facts determined by the court of the second instance in other respects challenged by the jokoku appellant can be accepted in light of the evidential materials listed in the judgment of the second instance, and therefore the process of fact-finding does not contain such illegality as argued by the jokoku appellant. The jokoku appellant's argument, including the point alleging violation of the Constriction, criticizes the court of the second instance for selection of evidence and fact-finding, although they are subject to the court's exclusive jurisdiction, and alleges from their own arbitrary viewpoint that the court of the second instance wrongly interpreted or applied laws and regulations, or alleges inappropriateness in the calculation of the amount of non-pecuniary compensation, which is also subject to the court's own discretion. Therefore, the jokoku appellant's argument cannot be accepted.

Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Justice CHIGUSA Hideo
Justice MOTOHARA Toshifumi
Justice KANATANI Toshihiro
Justice OKUDA Masamichi