Medical Disputes in China

Medical disputes in China are governed by the Civil Code (Book VII, Tort Liability) and the Medical Malpractice Regulation (Yiliao Shigu Chuli Tiaoli). The legal framework addresses: medical damage liability; burden of proof; medical appraisal; and dispute resolution mechanisms. Medical disputes have become increasingly common as patient expectations have risen and the healthcare system has grown more complex.

Tort Liability Framework

The Civil Code (Articles 1218-1228) establishes the tort liability framework for medical disputes. Article 1218 provides that where a patient is harmed in the course of medical treatment and the medical institution or its medical staff was at fault, the medical institution bears compensatory liability. The provision establishes fault-based liability as the general principle.

The Civil Code specifies several categories of medical liability: liability for diagnostic and treatment errors; liability for failure to inform and obtain consent; liability for violations of patient confidentiality; liability for defective medical products; and liability for medical records violations. The Code also prohibits unreasonable medical检查和 and excessive medical treatment.

The Civil Code introduced enhanced protections for patients’ rights to information and consent. Article 1219 requires that medical staff obtain the patient’s explicit consent before performing surgery, special examinations, or special treatments. Where the patient is unconscious or otherwise unable to consent, the consent of the patient’s close family members is required. Emergency treatment may be provided without consent where delay would endanger the patient’s life.

Burden of Proof

The burden of proof in medical disputes has been the subject of significant legal development. Under the previous Tort Liability Law (2009), a presumption of fault applied where the medical institution failed to meet statutory standards. The Civil Code shifted the burden, requiring the patient to prove fault by the medical institution (Article 1218).

However, the Civil Code maintains a presumption of fault in three situations (Article 1222): where the medical institution violates mandatory provisions of medical regulations; where the medical institution withholds or refuses to provide medical records; and where the medical institution falsifies, tampers with, or destroys medical records. In these cases, the burden shifts to the medical institution to prove that it was not at fault.

The patient must prove: the existence of a doctor-patient relationship; the occurrence of damage; and causation between the medical treatment and the damage. The medical institution must prove: compliance with medical standards; proper consent; and absence of fault where the presumption applies.

Medical Appraisal

Medical appraisal (yiliao jianding) is a critical procedural step in medical dispute resolution. The appraisal is conducted by medical associations or judicial appraisal institutions and addresses: the standard of care; causation between the medical treatment and the damage; the degree of fault; and the extent of damage.

The appraisal process involves: review of medical records; examination of the patient; assessment of the medical treatment against professional standards; and preparation of an expert opinion. The expert opinion is admissible in court and is given significant weight, though it is not binding on the court.

The medical appraisal system has been criticized for lack of independence, as appraisers may be colleagues of the defendant medical staff and may be biased toward medical institutions. The dual system of medical association appraisal (yiliao shigu jianding) and judicial appraisal (sifa jianding) has created inconsistency and forum shopping.

Judicial Appraisal

Judicial appraisal (sifa jianding) is conducted by licensed forensic institutions and is governed by the SPC’s provisions on expert evidence. Judicial appraisal may be ordered by the court or requested by the parties. Judicial appraisers have specialized medical expertise and are required to be independent and impartial.

Judicial appraisal differs from medical appraisal in several respects: judicial appraisers are independent of medical associations; the judicial appraisal process is more adversarial (allowing party participation and cross-examination); and judicial appraisal opinions are subject to the same evidentiary rules as other expert opinions. Courts have shown increasing willingness to accept judicial appraisal over medical association appraisal, particularly in complex cases.

Hospital Liability Insurance

Medical liability insurance has been promoted as a mechanism for managing the financial risks of medical disputes. The government has encouraged medical institutions to purchase medical liability insurance, and mandatory insurance schemes have been implemented in some provinces. Insurance covers: compensation for medical injuries; legal costs of defending claims; and settlement costs.

The insurance system has not been fully effective. Coverage is uneven; insurance premiums are high; and insurers frequently dispute coverage and liability. The government has proposed reforms to create a more standardized and affordable insurance market for medical liability.

Mediation Mechanisms

Mediation plays a central role in medical dispute resolution. The People’s Mediation Law (2010) provides for mediation by People’s Mediation Committees, and specialized medical mediation committees have been established in many cities. Medical mediation typically involves: neutral mediators; informal procedures; party participation; and non-binding resolutions.

The advantages of mediation include: lower cost than litigation; faster resolution; preservation of doctor-patient relationships; and confidentiality. Medical mediation has been promoted by the government as a preferred method of dispute resolution, and the Civil Procedure Law encourages courts to refer medical cases to mediation before trial. However, mediation may not be appropriate where there are significant power imbalances between the parties or where legal precedent is needed.