Realities and Prevention Strategies for Nursing Care Accident Lawsuits: A Comprehensive Guide for Facility Managers

In facilities providing caregiving services, implementing preventive measures and risk management for caregiving accidents is essential. By understanding the realities of caregiving accidents and related litigation, facilities can prepare and respond appropriately to both accidents and lawsuits.

This article will provide a detailed explanation of the realities of caregiving accidents and litigation in the provision of caregiving services in Japan. It will also elaborate on the key points for establishing risk management and preventive measures, as well as structuring operational systems to prepare for potential caregiving litigation.

The Rising Trend of Nursing Care Accident Lawsuits in Japan

The Ministry of Health, Labour and Welfare of Japan officially announced that, according to the first nationwide survey conducted in Heisei 29 (2017), at least 1,547 residents had died due to nursing care accidents in special nursing homes for the elderly (tokuyou) and long-term care health facilities (rouken) across the country.

While there are no specific statistics kept by courts or administrative agencies regarding the number of nursing care accidents that have led to litigation, it is generally observed that lawsuits related to nursing care accidents are on an increasing trend.

The reasons for the recent increase in the number of nursing care accident lawsuits are as follows:

• Approximately 25% of the population is over 65 years old, making Japan a super-aged society, and the absolute number of cases has increased due to the widespread availability of nursing care services.
• About 20 years have passed since the implementation of the Long-Term Care Insurance System, leading to a heightened awareness of rights among service recipients.
• There is a shortage of nursing care personnel and a deterioration in the management of care facilities, which has led to a decline in the quality of services provided.

As the aging population continues to grow, it can be inferred that the number of lawsuits related to nursing care accidents will further increase in the future.

Representative Cases of Nursing Care Accident Litigation in Japan

In Japan, among the cases that lead to litigation due to accidents in nursing care facilities, falls and choking accidents are the most common. Here, we will explain the personalityistics and examples of court cases related to fall accidents and choking accidents.

Court Cases of Fall Accidents

Fall accidents are overwhelmingly the most common in nursing care accident litigation. Falls can occur in various situations, such as tripping over a step, losing balance while walking, or falling when transferring from a bed to a wheelchair.

When a fall results in serious injuries such as dislocations or fractures, it often leads to significant damages due to treatment costs and impact on daily life, which in turn can lead to litigation.

An example of a court case related to a fatal fall accident is the judgment by the Osaka High Court on March 6, 2007 (Heisei 19). In this case, a resident of a dementia care facility fell and fractured a bone, leading to death approximately two years later.

The judgment found that although the staff could have anticipated the possibility of the resident walking unstably, which was not usual for the resident, they failed to take the necessary safety precautions. As a result, the facility was found to have breached its duty of care, and damages were awarded.

Court Cases of Choking Accidents

Besides fall accidents, choking accidents are also common. Choking occurs when food is not swallowed properly and gets stuck in the throat, which can happen during any meal or snack.

Choking accidents can lead to asphyxiation and, in the worst cases, death. When death occurs, the compensation awarded in litigation can be substantial.

An example of a court case related to a fatal choking accident is the judgment by the Nagoya District Court on August 7, 2023 (Reiwa 5). In this case, an 88-year-old man who was certified as needing nursing care and resided in a special nursing home for the elderly choked on a roll during breakfast and died as a result.

The court found that since the man had experienced a similar choking incident one and a half months before his death, the facility could have recognized the risk of choking if the same type of meal was provided. The court acknowledged the facility’s negligence and ordered the payment of 24.9 million yen in damages.

The Process Leading to Litigation

Nursing care accidents in Japan can range from falls and choking incidents to accidents occurring outside the facility and injuries caused by disputes between residents. Regardless of the type of accident, once it occurs, there is a risk that it may lead to litigation. This article will explain the flow of events leading up to a nursing care accident lawsuit in Japan.

When an accident occurs in a nursing care service, there is an obligation to report it to the local government, which necessitates an investigation into the cause of the accident. Because these are accidents that occur during care, it is essential for the facility’s staff to conduct a proper investigation and explain the findings to the users and their families.

Related article: The Importance of Nursing Care Accident Reports: How to Write and What to Watch Out For

Even if the facility is at fault, it is not common to immediately initiate a lawsuit. Typically, a discussion between the facility and the user or their family is conducted first. These discussions may take place directly between the parties or may involve a third party, such as a lawyer, to facilitate the conversation.

If the discussions between the parties do not lead to a resolution, such as a settlement, the user or their family may decide to file a lawsuit in Japan.

Key Issues in Nursing Care Accident Litigation in Japan

When a nursing care accident occurs and the service user or their family sues the facility, it leads to a dispute in court. In trials concerning nursing care accidents in Japan, there are often multiple issues at stake, such as the existence of liability for the accident and the amount of damages. This article will explain the main points of contention in nursing care accident litigation.

Circumstances of the Accident

We will organize the circumstances under which the nursing care accident occurred. It is necessary to clarify when, where, and during what activity the accident happened.

It is crucial to clearly define the specific circumstances of how the accident occurred, and objective evidence is needed for this purpose.

Existence of Causation

Even if a nursing care accident in Japan does not result in death immediately but only in injury, there are cases where the person may die subsequently.

In such cases, whether there is a causal relationship between the nursing care accident and the death becomes a point of contention. To prove this causal relationship, evidence such as medical records from the treating healthcare facility is required.

Liability of the Nursing Care Provider

The facility’s responsibility for the accident, such as a breach of the duty of care, is questioned. When disputing a breach of the duty of care, care records and staff testimony are crucial.

The court will judge whether the facility neglected its duty of care by comparing the care records at the time of the accident and the testimony of the staff present.

Calculation of Compensation Amount

If the facility’s breach of the duty of care and the causal relationship between the injury and death are proven, the facility may be ordered to pay damages for actual medical expenses, physical and mental suffering, etc. When calculating the amount of compensation, the plaintiff (victim) must concretely demonstrate the basis for the claimed damages.

In litigation, the court will determine the amount of damages based on the arguments of both parties and the evidence presented.

Preparing for Nursing Care Accident Litigation in Japan

When a nursing care accident occurs and leads to litigation, there is a risk of having to pay compensation. To avoid these risks, it is crucial to be prepared in advance to prevent nursing care accidents. We will explain the key points for preventing nursing care accidents and preparing for litigation.

The Importance of Risk Assessment

Preventing the occurrence of nursing care accidents requires important risk assessments. Risk assessment refers to a series of procedures that identify hazards, estimate risks, set priorities, and decide on risk reduction measures.

Understanding the physical condition of residents and creating individualized care plans can prevent nursing care accidents. For example, in preventing fall accidents, it is important to understand where and when each user is at risk and to create care plans accordingly. In the case of choking accidents, sharing information among staff about which foods are more likely to cause choking is also crucial.

Staff Education and System Development

Once risk assessments are conducted and risks and measures are clarified, it is essential to share this information with all facility staff to raise awareness of the risks of nursing care accidents.

Furthermore, educating staff on safety measures and conducting emergency response training are vital for quickly responding to accidents when they occur. Risk education for staff and the establishment of an accident response system can enhance the prevention of nursing care accidents and the facility’s response capability in the event of an accident.

Establishing a Recording and Reporting System

In addition to staff education, establishing a system for daily records and the creation of accident reports can enable a swift response when accidents occur.

Having a system in place for keeping daily records can further raise awareness of the risks of nursing care accidents. In the event of litigation, these records can also serve as evidence that the facility was responding appropriately.

By properly establishing a system for daily records and accident reports, you can respond quickly and meticulously to any nursing care accidents that may occur.

Summary: Understanding the Risks of Nursing Care Accident Litigation and Conducting Proper Risk Assessment

When a serious nursing care accident occurs, there is a possibility of being sued by the service users or their families. It is essential to be prepared for these nursing care accidents and lawsuits when providing nursing care services.

Understanding the flow of nursing care accident litigation and the potential issues that may arise, and being properly prepared, enables you to respond appropriately. If you have concerns about handling nursing care accidents or lawsuits in the provision of nursing care services, we recommend consulting with an attorney who is knowledgeable in the field of nursing care and welfare.

Guidance on Measures Provided by Our Firm

The caregiving industry in Japan is governed by a complex web of laws, including the Long-Term Care Insurance Act, the Elderly Welfare Act, and the Companies Act. Monolith Law Office serves as legal counsel for the National Association of Caregiving Businesses and caregiving service providers across all prefectures, possessing extensive know-how related to laws concerning caregiving businesses.

Areas of practice at Monolith Law Office: Corporate Legal Services for IT & Startups