Causal Uncertainty in Chinese Medical Malpractice Law - When Theories Meet Facts?

AuthorYu Xiaowei
YU Xiaowei
Causal uncertainty is frequently encountered in medical malpractice
cases, both in China and in other legal systems. Under the traditional
“all-or-nothing” approach of proof rules, the prevalence of causal
uncertainty makes proof of causation highly problematic in medical
malpractice lawsuits. The cutting-edge development at the national
level is to apply proportional liability in response to evidentiary
uncertainty over causation. After examining both “law on the books”
and “law in action” pertaining to medical malpractice, it is found that
although the new Chinese Tort Liability Law lacks evident rules that
handle the problem of causal uncertainty, Chinese courts are so
active and flexible that they systematically employ proportional
liability to the trial of medical malpr actice cases . The proportional
liability approach can be justified from both legal and law and
economics perspectives.
Keywords: causal uncertainty, proportional liability, medical
malpractice, causation, law and economics, Chinese law
In recent years, there is a growing public awareness of the
seriousness of conflicts or disputes between health care providers and
patients over the cause of iatrogenic injury (negligence or non-
negligence) and/or the amount of compensation for iatrogenic injury
(hereinafter medical disputes) in the People’s Republic of China.
Comprehensive empirical studies in China show that medical disputes
are prevalent and is becoming more frequent.1 However, what often
grabs the headlines more is widespread violence against health care
providers. A series of nationwide empirical studies2 show that about
1 See e.g. Zheng Xueqian (郑雪倩) et al., Dui 326 Suo Yiliao Jigou Yiliao Jiufen he Qinquan Shijian
de Diaocha Baogao ( 326所医疗机构医疗纠纷和侵权事件的调查报告) [An Investigation on the
Medical Dissensions and Infringement Events in 326 Medical Institutions], 6 ZHONGGUO YIYUAN (中国
医院) [CHINESE HOSITAL] 24 (2002) (reporting that 98.47% of all the surveyed 326 hospitals nationwide
reported that they had experienced serious m edical disputes in 2002). Song Xuri (宋旭日), Yueyang Shi
Yiliao Jiufen Diaoyan Baogao (岳阳市医疗纠纷调研报告) [Research of Yueyang Medical Disputes]
(Apr. 2011) (unpublished master thesis, Hunan Daxue (湖南大学) [Hunan University]) (reporting the
number of medical disputes increased at an average rate of 13.6% annually in Yueyang for the period
2007-2010). Liu Ruimin (刘瑞明) & Feng Yuli (冯钰丽), Dui Gongli Yiyuan Yiliao Jiufen de Diaocha
yu Sikao ( 对公立医院医疗纠纷的调查与思考) [An Investigation into and Reflection on Medical
Disputes Involving Public Hospitals], 2013 WEISHENG JINGJI YANJIU (卫生经济研究) [HEALTH
ECONOMICS RESEARCH] 60 (2013) (reporting the number of medical disputes in 9 public hospitals in
Foshan, Guangdong Province had gone up from 17 in 2008 to 33 in 2011).
2 Zheng Xueqian (郑雪倩) et al., supra note 1. Zheng Xueqian (郑雪倩) et al., Guonei Yiliao Jiufen
Diaocha yu Guowai Yiliao Jiufen Chuli (国内医疗纠纷调查与国外医疗纠纷处理) [Medical Dispute
56.1%~63.7% of the surveyed physicians are physically threatened or
injured, and roughly 35.58%~96% of the surveyed hospitals’ property
and order are disturbed or damaged by patients, their family members
or “professional mobs” (职业医闹).3 Whereas many violent incidents
occur because discontented patients abruptly lose control of their
emotions, a significant proportion of violent incidents are attributable
to patients’ deliberate strategies for claiming damages from hospitals
by coercive measures.4 Protest and violence are routinely used as “a
common tool for patients and their family members seeking
compensation from hospitals. 5 The plausible explanation of why
patients resort to violence in order to claim compensation is that they
do not trust the legal system that resolves medical disputes.6 This
“lack of a credible system” rather than frivolous litigation or
unavailability of malpractice insurance becomes the real “malpractice
crisis” in China.7
Much legislative endeavor has been made in order to build a
credible malpractice system in China. The medical malpractice
liability system was formally established in China in the second half
of the 1980s,8 and has been drastically reformed twice since then.9
Survey in China and Medical Dispute Solution Overseas], 11 ZHONGGUO YIYUAN (中国医院) [CHINESE
HOSPITAL] 2 (2007). Jia Xiaoli (贾晓莉) et al., 2003 Nian - 2012 Nian Quanguo Yiyuan Changsuo Baoli
Shangyi Qingkuang Diaocha Yanjiu (2003-2012年全国医院场所暴力伤医情况调查研究)
[Investigation on Hospital Violence during 2003 to 2012 in China], 18 ZHONGGUO YIYUAN (中国医院)
3 “Professional mobs” are hired by a victimized patient or her family members to help carry out
violent protest in order to force hospitals to pay compensation through settlement as quickly as possible.
They often resort to coercive measures such as assault and battery, false imprisonment and vandalism.
Less violent examples include burning money of the nether world, setting up a mourning hall, laying
funeral wreaths, displaying the dead body of the diseased patient, mobbing, picking a quarrel and making
trouble in the medical institution concerned.
4 Xu Xin (徐昕) & Lu Rongrong (卢荣荣), Baoli yu Bu Xinren: Zhuanxing Zhongguo de Yiyao Baoli
Yanjiu: 2000~2006 ( 暴力与不信任——转型中国的医疗暴力研究2000~2006) [Violence and
Mistrust: Research on Violence in Medical Treatment in Transforming China (2000~2006)], 2008 FAZHI
5 Benjamin L. Liebman, Malpractice Mobs: Medical Dispute Resolution in China, 113 COLUM. L.
REV. 181 (2013).
6 Xu & Lu, supra note 4.
7 Dean M. Harris & Chien-Chang Wu, Medical Malpractice in the People’s Republic of China: The
2002 Regulation on the Handling of Medical Accidents, 33(3) J. L. MED. & ETHICS 456 (2005).
8 Minfa Tongze (民法通则) [General Principles of the Civil Law] (promulgated by the Nat’l People’s
Cong., Apr. 12, 1986, effective Jan. 1, 1987, amended Aug. 27, 2009) art. 106(2) (Chinalawinfo)
[hereinafter GPCL] (providing the general tort clause). 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, 2002) (Chinalawinfo) [hereinafter MHMA] (the special
administrative regulation applicable to medical malpractice).
9 The first significant reform was initiated by amending the MHMA. Yiliao Shigu Chuli Tiaoli (
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) (Chinalawinfo) [hereinafter RHMA] (replacing the original MHMA
in 2002). 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]) Chap. 7
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).

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