Medical 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.
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.
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.
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