26 TSINGHUA CHINA LAW REVIEW [Vol. 9:23
Voluminous literature regarding the Chinese malpractice liability
reforms is currently available in English.10 In general, most scholarly
discussions were centered on three main reforms: the criteria for
liability, the expert witness system (鉴定制度) and the measure of
compensation. First, the MHMA and the RHMA imposed some
restrictions on the standard of care,11 causation,12 and compensatory
damage13 – all of which have been eliminated altogether.14 The
current standard of care required of physicians is defined as the
“obligations of diagnosis and treatment up to the standard at the time
of the diagnosis and treatment.” 15 Second, the old expert witness
(titled “Liability for Iatrogenic Injuries”, reforming the current regulation thoroughly for the second time
by repealing relevant malpractice liability rules in the RHMA).
10 See e.g. Harris & Wu, supra note 7 (discussing the pros and cons of the MHMA and the RHMA).
Ren Rongming & Wang Mantian, On the Legal System of Medical Malpractice Management in China
and Its Impact on Medical Ethics, 12(3) INT'L J. THE COMPUTER, THE INTERNET AND MGMT. 73-80 (2004)
(discussing the problems of the RHMA and its impact on medical ethical principles). Chao Xi & Lixin
Yang, Medical liability laws in China: The tale of two regimes, 19 TORT L. REV. 65 (2011) (discussing
the bifurcated medical negligence system in China for the period 2002-2010 and the legislative reform of
medical liability in 2010). Zhu W ang & Ken Oliphant, Yangge Dance: The Rhythm of Liability for
Medical Malpractice in the People's Republic of China, 87(1) CHI.-KENT L. REV. 21 (2011)
(summarizing the history of medical liability in China from 1949 onwards and evaluating main provisions
of the MHMA, the RHMA and the currently applicable TLL). DING CHUNYAN, MEDICAL NEGLIGENCE
LAW IN TRANSITIONAL CHINA (Intersentia 2012) (discussing and evaluating the old and the current
medical negligence system in China). Jordan Kearney, Why China's 2010 Medical Malpractice Reform
Fails to Reform Medical Malpractice, 26 EMORY INT'L L. REV. 1039 (2012) (opining the new TLL would
fail to achieve its goals of efficient deterrence and fair compensation). Min Zhao & Peng Tao, Current
Status and Legal Treatments of Medical Disputes in China, in LEGAL AND FORENSIC MEDICINE (R. G.
Beran ed., 2013) (discussing the current status and legal treatment of medical disputes in China).
11 Yiliao Shigu Chuli Tiaoli (医疗事故处理条例) [Regulation on the Handling of Medical
Accidents] (promulgated by the St. Council, Apr. 4, 2002, effective Sep. 1, 2002) [hereinafter RHMA]
art.2 (Chinalawinfo) (confining medical negligence to a breach of “laws, regulations, ministerial rules
concerning medical treatment and health or the standards or conventions of medical treatment and
12 Yiliao Shigu Chuli Banfa (医疗事故处理办法) [Measures for the Handling of Medical Accidents]
(promulgated by the St. Council, Jun. 29, 1987, effective Jun. 29, 1987, annulled Sep. 1, 20 02)
[hereinafter MHMA] art. 2 (Chinalawinfo) (providing that iatrogenic injuries must be “directly caused”
by medical negligence, w hich indicates an “immediate cause (直接原因)” instead of an “remote cause
(间接原因); that is to say, an intervening factor such as the patient’s underlying medical condition would
break the causal link between medical negligence and the final injury.).
13 Id., (restricting compensable iatrogenic injuries to “death, disability or tissue-organ injury leading
to dysfunction.”). RHMA art. 4 loosened the foregoing restriction; however, it still required that
compensable iatrogenic injuries must be “obvious or tangible (明显的).” Hence, less “obvious” injuries
such as those that would take years to discover, lost chances of survival or living a longer life, or
infringement on the right to self-determination were not compensable according to the RHMA.
14 Qinquan Zeren Fa (侵权责任法) [Tort Liability Law] (promulgated by the Standing Comm. Nat’l
People’s Cong., Dec. 26, 2009, effective Jul. 1, 2010) (Chinalawinfo) [hereinafter TLL] art. 54 (simply
providing that a defendant hospital shall be held liable for any harm a patient sustains during diagnosis
and treatment due to fault on the part of the defendant hospital or any of its medical staff, as the current
applicable general clause for medical malpractice liability). See e.g. Xi & Yang, supra note 10; Wang &
Oliphant, supra note 10; DING, supra note 10, at 55-94 (pointing out that even before the implementation
of the TLL in 2010, it was possible for courts to apply the GPCL and its judicial interpretations to medical
malpractice cases that, according to expert opinions, were not regarded as “medical accidents.”).
15 Qinquan Zeren Fa (侵权责任法) [Tort Liability Law] (promulgated by the Standing Comm. Nat’l
People’s Cong., Dec. 26, 2009, effective Jul. 1, 2010) [hereinafter TLL]) art. 57 (Chinalawinfo).