Jordan Kearney, Why China?s 2010 Medical Malpractice Reform Fails to Reform Medical Malpractice

• Citation: Vol. 26 No. 2
• Publication year: 2010

WHY CHINA’S 2010 MEDICAL MALPRACTICE REFORM FAILS TO REFORM MEDICAL MALPRACTICE

INTRODUCTION

Violence against doctors and healthcare staff in the People’s Republic of China has turned doctors and nurses into masters of self-defense. Healthcare facilities in China have become “battlegrounds of discontent.”1 Scenes coming out of hospitals in the People’s Republic of China look more like warzones than healthcare institutions. In Guandong Province, nurses wear steel military helmets while caring for newborns,2 and hired professionals teach self-defense classes for female doctors and nurses.3 Doctors and hospital staff in Nanchang were even issued long sticks and cans of mace to fight off a mob of people carrying pitchforks and clubs.4

Unfortunately, violence against doctors and healthcare employees has become commonplace in modern China. With no viable legal recourse for medical malpractice, family members “take matters into their own hands.”5 Some families of malpractice victims attack hospitals for revenge, while others choose to stage protests or riots in hopes that the local government will “pay to quiet the protesters . . . .”6 Between January 1991 and July 2001, there were

568 attacks on healthcare facilities and workers in Hubei Province alone, including some deaths.7 From 2000 to 2003, a total of ninety health care workers were either wounded or disabled in Beijing’s 502 reported incidences of violence against healthcare workers in the city.8 In Jiangsu Province, violence increased by thirty-five percent each year from 2000 to 2002, with an average of 177 attacks on healthcare facilities and workers per year.9 In 2006,

A1.

1. Sharon LaFraniere, Chinese Hospitals are Battlegrounds of Discontent, N.Y. TIMES, Aug. 12, 2010, at

   
   

2. Doctors, Nurses Wearing Helmets, CHINA DAILY (Dec. 26, 2006, 10:54 AM), http://www.chinadaily.

   com.cn/photo/2006-12/26/content_767787.htm.

3. Doctors in Self-Defense Mode, CHINA DAILY (April 25, 2011, 7:59 AM), http://www.chinadaily.com. cn/opinion/2011-04/25/content_12384968.htm.

4. Barbara Demick, In China, Sixth Stage of Grief Calls for a Club, L.A. TIMES, Aug. 25, 2011, at A3.

5. Id.

6. Id.

7. Dean M. Harris & Chien-Chang Wu, Medical Malpractice in the People’s Republic of China: The 2002 Regulation of the Handling of Medical Accidents, 33 J.L. MED. & ETHICS 456, 456 (2005).

8. Id.

9. Id.

   the Chinese Health Ministry reported that attacks by patients or their relatives had injured more than 5,500 medical workers.10 In 2007, after reports that an infant was denied life-saving treatment because his guardians could not afford the £50 fee, 2,000 demonstrators attacked a city hospital, leading to ten injuries and five arrests.11

   
   

   The attacks on hospitals and healthcare workers are symptomatic of a widespread discontent with the Chinese healthcare system and the government that regulates it. The majority of the Chinese population does not have access to sufficient medical care, and those who do often receive substandard care.12

   Healthcare professionals’ negligence and failure to act puts patients at risk of death or disability.13 For example, in the 1990s, up to one million people were infected with HIV through transfusions of blood the public hospitals were selling for profit.14 The media frequently reports on the most recent medical accident15—with reports ranging from a “stillborn” infant found alive after

   doctors wrapped her in a plastic bag and dumped her in a hospital bathroom16 to a worker who woke up from what was supposed to be a thumb-reattachment surgery to find doctors had cut off his toe and sewed it onto his thumb.17

   
   

   Patient attacks on doctors are common in China due to the lack of an alternative way for injured parties to seek justice. There is no effective remedy for injured patients because China lacks a “credible system to deal with medical accidents and related problems in quality care.”18 People who fall

   victim to medical malpractice find that it is “difficult to sue” even in the most egregious cases.”19 The difficulty of suing for malpractice, coupled with the

   
   

10. LaFraniere, supra note 1, at A1.

11. Jonathan Watts, Chinese Hospital Staff Face Attack Amid High Prices and Dubious Care, THE GUARDIAN (May 11, 2007), http://www.guardian.co.uk/world/2007/may/12/china.jonathanwatts1.

12. WORLD HEALTH ORG., WORLD HEALTH REPORT 2000: HEALTH SYSTEMS: IMPROVING PERFORMANCE

    36 (2000).

13. Melinda Cooper, Experimental Republic: Medical Accidents (Productive and Unproductive) in Postsocialist China, 5 E. ASIAN SCI. TECH. & SOC’Y: INT’L J. 313 (2011).

14. Demick, supra note 4.

15. In China, a “medical accident” refers to any incident of medical malpractice. It does not imply that the incident was a pure accident or that no one was at fault. See generally Cooper, supra note 13.

16. Lucy Buckland, Doctors Dumped Baby in Plastic Bag After Telling Mother It Was a Dead Girl (Only for Her to Find It Was a Little Boy Who Was ALIVE), MAIL ONLINE (Nov. 5, 2011, 3:22 PM), http://www. dailymail.co.uk/news/article-2057914.

17. China Worker Shocked to Find Thumb Replaced by Toe, ASIAONE (Oct. 17, 2011), http://www.

    asiaone.com/Health/News/Story/A1Story20111017-305544.html.

18. Harris & Wu, supra note 7, at 470.

19. Demick, supra note 4.

    historical mistrust of litigation among Chinese citizens,20 makes the possibility of recourse though the law an unlikely alternative to physical violence.

    
    

    China’s new Tort Liability Law21 came into force on July 1, 2010, and includes a complete overhaul of the medical malpractice system.22 The new law was highly praised as protecting “the rights of patients who suffer from damage caused by medical malpractices, but also protect[ing] the lawful rights of medical institutions and medical staff to ensure the healthy and ordered development of the health-care system.”23 The law was touted as the ultimate solution to the problem of hospital violence and medical malpractice.24

    
    

    In theory, tort law is a logical solution to address hospital violence.25 Ideally, a medical malpractice system could compensate victims, deter tortious behavior, and prevent retributive violence by providing an alternate forum for justice after an incident of malpractice. However, tort theory relies on

    assumptions that do not apply in the context of the legal system of China.26

    The effectiveness of a tort system in minimizing tortious acts and pacifying violence in response to tortious acts relies on the public’s ability to get a “fair” trial and the public’s perception of that ability.27 Tort theory breaks down when the general population does not anticipate justice from the court or does not have access to courts.28 Without a legal structure that can fairly and efficiently manage claims and to which all people have access, the Tort Liability Law will be ineffective in controlling the issues the reform was intended to address.

    
    

    This Comment uses tort theory to show that the new Tort Liability Law’s medical malpractice provisions will be ineffective. The Tort Liability Law does not adequately compensate victims, and it will fail to prevent tortious

    
    

20. MARGARET Y.K. WOO & MARY E. GALLAGHER, Introduction to CHINESE JUSTICE: CIVIL DISPUTE

RESOLUTION IN CONTEMPORARY CHINA 1 (Margaret Y.K. Woo & Mary E. Gallagher eds., 2011).

21

???????????? [Tort Liability Law of the People’s Republic of China] (promulgated by

the Standing Comm. Nat’l People’s Cong., Dec. 26, 2009, effective July 1, 2010) [hereinafter Tort Liability Law], translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=182630.

1. Id. at ch. VII.

2. Yan-Lin Cao et al., Letter to the Editor, New Legislation in China Balancing the Rights of Both Doctors and Patients, 52 MED. SCI. & L. 60, 61 (2012).

3. See, e.g., id. at 61–62 (“Although the judicial system in China differs from those in England, the USA

   and other countries that adopt the Common Law, the principles of Medical Tort Law legislation established in China can also be used as references for the judges in those countries while judging lawsuits of medical malpractice.”).

4. See infra Part I.

5. See infra Part II.

6. See infra Part II.

7. See infra Part II.

   conduct and retributive hospital violence. Part I provides a background on tort theory, and Part II situates the new Tort Liability Law within the context of the Chinese legal system and healthcare system. Part III describes the most important features of the new Tort Liability Law and analyzes the changes it brings to the existing medical malpractice system. Part IV uses tort theory to analyze the new law and identifies the flaws in the legislation that will prevent it from bringing the desired improvements to the Chinese healthcare system.

   
   

   Although, generally, China’s current trend of developing the legal system reflects some progress, the medical malpractice portion of the Tort Liability Law is a reform on the books that will not translate into actual medical reform. As it is written, the unfortunate effect of the reform likely will be to further suppress an already insufficient and underfunded medical industry. The law will have to be accompanied by broader reform in the Chinese justice system to achieve its purported goals. Real changes in the medical malpractice system will not come until the government makes an investment in the administrative processes to support the law and to assure its fair administration.

   
   

   1. THE FUNCTIONS OF TORT LAW

      
      

      China’s new Tort Liability Law was formulated “[i]n order to protect the legitimate rights and interests of parties in civil law relationships, clarify the tort liability, prevent and punish tortious conduct, and promote the social harmony and stability . . . .”29 This Comment will analyze the content of the

      Tort Liability Law using tort theory to determine if the law will be able to achieve its stated objectives. Traditional tort theory is an appropriate construct within which to analyze China’s tort law because the goals of tort law that it recognizes are in line with the stated goals of the Tort Liability Law.

      
      

      Modern scholars recognize the two primary functions of tort law to be compensation and deterrence.30 However, in the...