Medical Malpractice in China

Civil Code Provisions on Medical Damage

Medical malpractice liability in China is governed by Book VII (Tort Liability) of the Civil Code (Articles 1218–1228), which codified and refined the medical damage provisions previously contained in the Tort Liability Law (2009). The Civil Code establishes a framework of liability based on fault, with specific provisions for: (1) liability for medical damage caused by negligent diagnosis or treatment; (2) liability for failure to disclose medical information; (3) liability for defective medical products; (4) liability for infection and contamination; and (5) liability for privacy violations in the medical context.

Article 1218 provides the general rule: where a patient suffers damage in the course of medical diagnosis and treatment, and the medical institution or its medical personnel are at fault, the medical institution bears liability for compensation. This fault-based standard requires the patient to prove both the fact of damage and the causal link between the medical personnel’s conduct and the damage, though the burden shifts to the medical institution in certain circumstances.

Burden of Proof

The burden of proof in medical malpractice cases has been a contentious issue in Chinese tort law. Under the SPC Judicial Interpretation on Medical Damage Disputes (2017), the general rule is that the patient bears the burden of proving: (1) the existence of a medical relationship; (2) the fact of damage; (3) the medical institution’s fault; and (4) the causal link between fault and damage. However, the burden shifts to the medical institution where the patient proves one of the following: (1) the medical personnel violated mandatory medical standards; (2) the medical personnel concealed or refused to provide medical records; or (3) the medical personnel fabricated, destroyed, or tampered with medical records.

The burden-shifting mechanism is designed to address the information asymmetry between patients and medical institutions. In practice, most medical malpractice cases rely on expert appraisal (jiàndìng) to establish fault and causation, with the cost of appraisal typically advanced by the patient but recoverable from the losing party.

Medical Damage Appraisal

Medical damage appraisal is a critical element in Chinese medical malpractice litigation. The Provisions on Medical Damage Appraisal (2018) establish two parallel appraisal systems: (1) medical association appraisal conducted by medical associations at the municipal or provincial level; and (2) judicial appraisal conducted by licensed forensic appraisal institutes. The medical association system is more commonly used in medical malpractice cases, while judicial appraisal is more common in personal injury cases involving medical issues.

The appraisal addresses: (1) whether the medical institution was at fault; (2) whether the fault caused damage; (3) the degree of contribution of the fault to the damage (expressed as a percentage); and (4) the classification of medical damage (functional impairment assessment). The appraiser must be impartial and independent, and the appraisal report is subject to cross-examination by the parties. Courts are not bound by the appraisal report but rarely depart from it without compelling reasons.

Compensation

Compensation for medical malpractice under the Civil Code follows the general tort damages framework in Articles 1179–1187. Recoverable damages include: (1) medical expenses (past and future); (2) nursing expenses; (3) nutrition expenses; (4) lost income; (5) transportation costs; (6) accommodation costs; (7) disability compensation (calculated based on the degree of disability and the per capita disposable income of urban residents); (8) death compensation; (9) funeral expenses; (10) spiritual damages (jīngshén sǔnhài péicháng); and (11) other reasonable expenses.

Spiritual damages are available where the patient suffers serious physical or mental harm. The SPC Judicial Interpretation on Spiritual Damages (2021) provides that spiritual damages in medical cases are typically capped at ¥50,000 to ¥100,000, though courts have discretion to award higher amounts in egregious cases. Death compensation and disability compensation are calculated using standardised formulas based on statistical data, which has been criticised for undercompensating younger patients and those with higher earning potential.

Hospital Liability

Liability attaches to the medical institution (the hospital) rather than the individual medical practitioner. The Civil Code provides that the medical institution is liable for damage caused by the medical personnel it employs, regardless of whether the personnel acted within the scope of their duties. Individual medical personnel may face administrative sanctions (suspension or revocation of medical licences) and, in cases of serious negligence resulting in death or serious injury, criminal liability under Article 335 of the Criminal Law (medical accident crime).

The hospital’s liability extends to: (1) acts of employed doctors, nurses, and technicians; (2) acts of visiting specialists and consulting physicians; (3) acts of interns and trainees under supervision; and (4) defects in medical equipment and facilities. Hospitals may seek contribution from individual medical personnel in cases of intentional misconduct or gross negligence, but this right is rarely exercised in practice.

Medical Record Disclosure

Patients have a statutory right of access to their medical records under Article 1225 of the Civil Code and the Regulation on the Handling of Medical Accidents (2002). Medical institutions must: (1) prepare and maintain complete and accurate medical records; (2) provide patients with access to their records upon request; (3) provide copies of records at reasonable cost; and (4) retain records for a minimum of 15 years (outpatient records) or 30 years (inpatient records).

The right of access extends to all records created during the episode of care, including admission records, progress notes, surgical records, nursing records, laboratory reports, imaging studies, and discharge summaries. Courts may draw adverse inferences against medical institutions that fail to provide requested records or that provide incomplete or altered records. The Shan Zhong v Beijing Hospital case established that the unauthorised disclosure of patient medical records also constitutes a violation of the right to privacy under the personality rights provisions of the Civil Code.

Obstetric and Surgical Liability

Obstetric and surgical cases constitute the largest categories of medical malpractice claims in China. Obstetric liability cases frequently involve allegations of: failure to monitor foetal distress; delayed caesarean section; birth injuries (brachial plexus injury, cerebral palsy); and failure to diagnose maternal complications. Courts have imposed strict standards on obstetric care, reflecting the vulnerability of both mother and child. The Li v Guangzhou Women’s Hospital case (2021) established liability for failure to offer caesarean section in a timely manner despite clear indicators of foetal distress.

Surgical liability cases involve: wrong-site surgery; retained foreign bodies (sponges, instruments); anaesthesia errors; post-operative infection from inadequate sterile technique; and failure to obtain informed consent for surgical procedures. The SPC Guiding Case No. 24 (2014) established the principle that surgeons must obtain specific informed consent for each surgical procedure, and that consent for one procedure does not extend to additional procedures performed during the same operation. The Wang v Shanghai Ruijin Hospital case established liability for failure to disclose surgical risks in a manner understandable to the patient, applying the informed consent standard that requires disclosure of material risks and alternative treatments.