Medical Liability Laws in China: The Tale of Two Regimes

Abstract

The medical liability laws in China have undergone a series of major reforms in the last decade, culminating in the enactment in 2009 of the Tort Liability Law. One outcome of these reforms has been the emergence of a bifurcated medical negligence legal system in China, consisting of two distinct and separate medical liability regimes: an administrative regime and a judicial regime. The more traditional administrative regime strongly favours medical care providers, whereas the judicial regime takes a more pro-plaintiff stance. The rise of the judicial regime has led to an increase in the frequency and severity of medical negligence claims, “forum shopping” by plaintiff patients, and the prevalent practice of defensive medicine. The Tort Liability Law sets out, among other things, to bridge this bifurcation, but only with limited success. Many of the new statutory provisions, which are characterized by vagueness and generality, may be subject to flexible and varied interpretations. And much of the pre-existing medical liability rules remain intact and still applicable to the extent they are not inconsistent with the new Law.

Keywords: medical malpractice, China, medical liability laws