Medical malpractice law–a heads up from the Supreme People’s Court

5d1f900037c306e744c72f9d2b511837Medical malpractice law is the elephant in the room for those considering investing in China’s healthcare sector. In March, the Chinese government issued a large scale plan for reforming  medical institutions. Part of those reforms include attracting private and foreign capital to invest in hospitals, clinics, and other medical institutions (as the Communist Party Central Committee highlighted in the Third Plenum Decision), but a few other phrases highlight doing a better job of resolving medical disputes.

According to the head of the #1 Civil Division of the Supreme People’s Court (Court) in 2014, the Chinese courts heard almost 20,000 medical malpractice cases, and over the last seven years, there has been 81% increase. Chinese patients (and families) are increasingly aware that litigation may result in a more favorable outcome than other methods.  In a recently issued document (still in draft, but already published on the Internet), the Supreme People’s Court has signalled that it is working on:

  • a body of medical malpractice law rules; and
  • better systems to resolve disputes involving the medical system.

Some background

In recent years, disputes between doctors, hospitals and patients in China have been in the news, in policy reports, and scholarly articles, with descriptions of  beatings, brawls, and killings occurring in Chinese hospitals.  The current problems have been highlighted (in English, at least) on this blog, in the press, in NGO reports, and analyzed in several law review articles, including a detailed study by Professor Benjamin Liebman, of Columbia Law School.

What issues is the Court looking at?

Chinese medical malpractice law (and related institutions) are inadequate for dealing with increasingly litigious Chinese patients (and their families) (as highlighted in this earlier blogpost). In the document, the Court announced:

  • it is working on new ways of trying medical malpractice cases;
  • high on its priority  is more detailed rules on the burden of proof and the standard of proof in medical malpractice cases (the new interpretation of the civil procedure law does not add significant details on this, leaving earlier rules in place);
  • the concept is to strike a balance between protecting the interests of the patients and enabling normal operation of medical institutions.

The document sets out some rules that are likely to be incorporated into a judicial interpretation:

  • a plaintiff seeking to bring a medical malpractice cases must provide evidence of the doctor-patient relationship (evidence could include registration card, medical history, hospital discharge certificate), payment receipts;
  • a medical institution has the burden of proof when asserting that it should not be liable because medical personnel had taken all reasonable medical efforts, or the state of medical development, or other such issues;
  • in a medical dispute, if a party is found to have been tampering with the medical record, as a result of which it is not possible to determine causation or the extent of damages, the party who has tampered should bear the adverse legal consequences, and the party who cannot explain internal inconsistencies and errors in the medical record should also bear the advertise legal consequences.

Concluding comments

A press report in January, 2015 mentioned that the Court has started work on drafting a judicial interpretation on medical malpractice issues.  If previous legislation is any guide, it is likely that the drafters will be looking to foreign jurisdictions with developed medical malpractice legislation when considering these issues.  The Court will consult with the relevant regulatory institutions, such as the China Food and Drug Administration and the National Health and Family Planning Commission. Will the Court solicit public opinion?

Investors considering investing in Chinese medical institutions (or doctors practicing in China), should anticipate a more robust medical malpractice system, although not immediately.

 

 

 

The Supreme People’s Court Strikes Against Violence in the Medical System

Dr. using opinion as a shield

Dr. using opinion as a shield

In late April, the Supreme People’s Court, the Supreme People’s Procuratorate, and three central government agencies issued a document focusing on medical-related disputes and crimes committed within China’s medical system, along with four typical cases(典型案例).   (I flagged the importance of the issue of medical disputes and crimes in a post late last year and have discussed typical cases here.)  The document:

  • provides an recent example of the Court issuing policy documents;
  • shows how the Court implements Party/government policy relating to an important social issue;
  • illustrates the stresses in the Chinese medical system; and
  • highlights the inadequacies in medical legislation.

Why was this document issued?

The document was issued to deal with the increasing number of disputes and especially the violence in the Chinese medical system, that have been reported and explained by a variety of sources, including the Lancet, BloombergBusinessweek, and the Atlantic. The Chinese press (also academics outside of China and foreign press) has run many stories on “medical troublemakers” (医闹) –either disgruntled patients or their families or people especially hired to make trouble in a hospital to embarrass the hospital to making a large settlement. Why?  As Wan Xin, a member of the Council of the Chinese Medical Law Association is quoted in a Xinhua press release as saying: “if you make little trouble, you get little money, make big trouble, you get big money, if you don’t make trouble, you don’t get money” (小闹小给钱, 大闹给大钱, 不闹不给钱).

Heilongjiang medical workers protest

Heilongjiang medical workers protest

Protest outside one of Kunming's main hospitals

Protest outside one of Kunming’s main hospitals

The Court issues policy documents

The document, clunkily named  “Opinion on strictly punishing according to law illegal and criminal acts relating to the medical system and upholding normal medical order” (关于依法惩处涉医违法犯罪维护正常医疗秩序的意见) (the Opinion), was issued by the following government agencies in addition to the Court:

  • Supreme People’s Procuratorate;
  • Ministry of Public Security
  • Ministry of Justice;
  • State Commission on Health and Family Planning.

The Opinion is what in Chinese is called a normative document(规范性文件). As I discussed in an earlier blogpost, the Court often issues them (and has done so for many years). They contain legal rules and policy statements and have different titles from judicial interpretations, in this case “Opinion”.

This document, for example, does not fit the legal definition of a judicial interpretation because it is issued with three State Council ministries/commissions, that is three agencies not authorized to issue judicial interpretations.   The rationale for this practice is that officials of the administrative organ involved will comply only if their administrative organ jointly issues it with the Court and requires compliance of its subordinates, which in this matter includes the hospitals and other parts of the medical system, the police, and the people’s mediation committees.  Normative documents also address issues, such as this one, where the law is unsettled and are also on the political agenda.

What the Opinion says and does not say

The substance of the Opinion is in two sections.

Section 2 describes six sets of offenses commonly committed, how they should be punished and what different parts of the justice system should do.  Those offenses are:

  1.  Attacking or intentionally harming medical personnel and damaging property;
  2. In medical institutions, setting up shrines, funeral wreaths and burning paper money or placing a corpse in public spaces;
  3. Restricting the freedom of medical personnel (e.g. by preventing them from leaving their workplace)
  4. Insulting medical workers,
  5. Bringing weapons, explosives, radioactive materials etc. into medical institutions; and
  6. Instigating others (including family members) to commit crimes against medical personnel.

For each offense, a range of punishments is described, ranging from administrative penalties under the Law on Administrative Penalties for Public Security to criminal punishment.

Section 3 focuses on preventing medical related disputes and improving the way they are resolved.  In particular, the health authorities are directed to improve the quality of medical services, their own monitoring of medical institutions, the compliance of medical institutions with medical legislation and medical codes, improve the protection of patient’s right to privacy, right to know, right to choose, and other rights, and push the establishment of better channels of communication with patients. The Opinion calls for a three track system for resolving medical disputes:

  • medical institutions should establish departments to receive and deal with complaints;
  • otherwise, medical disputes should be mediated through three party mediation;
  • if mediation does not work, the courts should deal with the cases in a timely manner.

The Opinion does not call for improving legal rules dealing with medical issues.  (But see more about this below.)

The Court implementing Party/government’s policy

Disputes involving the medical system have increased in number and severity in the last few years.  Violent crimes committed by patients and/or their families have increased, capturing national attention.  In the Third Plenum Decision, the Central Committee called on the government to address the underlying issues:

Reform of the medical and health care system shall be deepened. The comprehensive reform of medical security, medical services, public health, drug supply and regulatory system shall be pushed forward in a coordinated manner…Efforts shall be made to improve the work system linking people’s mediation, administrative mediation and judicial mediation, and set up a comprehensive mechanism for mediating, handling and resolving conflicts and disputes.

Therefore improving medical security and medical dispute resolution have been high on the agenda of the Central Committee Political Legal Committee. The Opinion and related articles were published on the website of the Central Political Legal Committee and the Chairman of the Central Political Legal Committee has been involved in initiatives implementing the Opinion, particularly the mediation of medical disputes.

Protecting medical institutions from troublemakers

Protecting medical institutions from troublemakers

Inadequacies in medical legislation and dispute resolution

The Opinion does not address the inadequacies in existing medical malpractice legislation.  (This has been the topic of several law review  articles in English (also in medical academic literature) and many more articles in Chinese, including on Chinese social media. Although the Tort Liability Law contains basic principles, the law itself and its related judicial interpretation do not have sufficiently detailed rules on issues such as:

  • cause of action;
  • liability of different parties;
  • expert opinion;
  • determination of causation;
  • issues of proof; and
  • determination of damages.

Therefore, these cases drag on in the courts, and Wan Xin noted that a wait of two or three years to resolve these cases is not unusual.  A Beijing judge, writing on social media, noted that medical malpractice cases in his district are “many, difficult, and volatile” (多,难, 激).

The lower courts have to cope with the increase in medical malpractice litigation, because patients are increasingly aware that litigation may result in a more favorable settlement than mediation.  Some local courts have issued court rules to deal with some of these issues. Some of the outstanding questions are:

  • when will the Court issue a more detailed judicial interpretation on medical malpractice and how will it strike a balance between the rights of patients and the medical system?
  • Can a effective dispute resolution system be devised which can put the “medical troublemakers” out of business?
  • Do foreign medical/legal systems have expertise in medical malpractice that may be suitably transferred to the complex Chinese medical/legal system?