Transcript V. Third Step Forward: Defensive and Passive Medical Treatment

Yangge Dance: the Rhythm and Process of
the Reform of Liability for Medical
Malpractice in P. R. China
•Zhu WANG
• LLD., Associate Professor
• Law School of Sichuan University
• [email protected].
I. Introduction
• A. What is Yangge Dance?
• Yangge Dance, is a popular folk group dance
in rural China.
• The basic pas of Yangge Dance is three steps
forward and two steps backward; one step
rightward, and one step leftward.
I. Introduction
• B. The Process of Reform of Liability for Medical
Malpractice in P. R. China is like Yangge Dance
• a. Three Steps Forward: Toward the Patients
• Step I: Before 1987, medical malpractice was
handled in administrative system without formal
legal rules.
• Step II: Rules on Handling Medical Accidents was
enacted in 1987.
• Step III: Regulations on Handling Medical
Accidents was enacted in 2002.
I. Introduction
• b. Two Steps Backward: Toward the
Doctors
• Step I: Tort Liability Law was enacted in
2009.
• Step II: Civil Code is on the way.
I. Introduction
• c. One step rightward, one step leftward.
• One step rightward by the medical community.
• One step leftward by the legal community.
I. Introduction
• C. Four dimensions of Liability for Medical
Malpractice
• a. Cause of Action.
• b. Burden of Proof.
• c. Organizer of Technical Identification.
• d. Compensation for Damages.
II. The Characteristics of the Medical
System in China
• A. Institutions as Legal Persons in General
Principles of Civil Law (1986)
• In 1980s, most hospitals were state-owned and were
regarded as institution. Therefore, the hospitals
presumably assumed the non-profit nature.
• B. Medical Practitioners in China Normally serve
in Hospitals.
II. The Characteristics of the Medical
System in China
• C. "Hospitals Flourish through Excessive Sales of Drugs"
• a. Drug sales takes up about 50% of most hospitals' revenue.
In 2007, the total revenue of the state-own hospitals in
Shanghai was 39 billion RMB, which consisted of:
• 1. Government subsidy: 3.64 billion RMB (9.5%)
• 2. Medical service: 16.94 billion RMB (43%)
• 3. Drug sales: 17.51 billion RMB (45%)
• 4. Other sources: 950 million RMB (2.5%)
• The percentage of drug sale in the revenue of private hospitals
is higher than that of state-own hospitals.
II. The Characteristics of the Medical
System in China
• b. The hospital system is the major sales channel
of medicine.
• From 2002 to 2007, hospitals took up 78.89% of the
drug market, compared with 21.11% by drugstores.
• In 2009, the medicine market in China was 580
billion RMB, in which:
• Hospitals: 430 billion RMB (74%)
• Drugstores: 150 billion RMB (26%)
• Actually, driven by interests, some drugs are sold
only through hospitals.
II. The Characteristics of the Medical
System in China
• c. Medical representatives and the kickback for
doctors
• Medical representatives in China appeared in 1988; so
far, there are over 2 million medical representatives.
• The kickback for doctors takes up:
• 10%~ 15% of the retail price of medicine,
• 90% of the total kickback in the hospital, and
• 75%~ 80% of the doctors' income.
Pharmaceutical
Pharmaceutical
Sell to (wholesale price)trader
producer
(production cost: 3
RMB)
Medical
through
representative
(commission)
Tender
Internal carve-up
kickback
Patient
(drug price:
38.1 RMB)
II. The Characteristics of the Medical
System in China
• D. Antagonism between the legal community and
the medical community
• a. Three main reasons why legal community distrusts
medical community
• 1. The medical treatment driven by economic interests
cannot guarantee the interests of patients.
• 2. Group bribery of the medical community blemishes
the public image of doctors.
• 3. The hospital gives up its obligation of healing the
wounded and rescuing the dying; it is common that
the hospital leave those poor dying unattended.
II. The Characteristics of the Medical
System in China
• b. Limits of liability by medical community V.S.
extra judicial remedies by legal community
• 1. One step rightward: the medical community
tries to limit liability for medical malpractice.
• 2. One step leftward: the court provides extra
remedies through judicial interpretation.
III. First Step Forward: Medical Service as
Social Welfare (1949-1987)
• A. Medical Service as Socialist Welfare
(1949-1978)
• B. The adoption of reform and opening-up
policy since 1978
IV. Second Step Forward: Limits on
Compensation (1987-2002)
• A. Rules on Handling Medical Accidents was
enacted in 1987
• This administrative regulation was enacted when
free medical service was part of social welfare
policy, and the medical treatment by the medical
institution was a form of social welfare. As a
result, strict limit was placed on the liability of
the medical institution that did harm to the
patients when exercising medical treatment.
IV. Second Step Forward: Limits on
Compensation (1987-2002)
• B. Four dimensions of the rightward step
by the medical community
• a. Cause of action: Medical accident
• 1. Medical malpractice accident.
• 2. Medical technology accident.
IV. Second Step Forward: Limits on
Compensation (1987-2002)
• b. Burden of proof: on the patient party
• This Rule requires that when medical
malpractice or incident happens, the medical
institution should assign special person to
properly keep the relevant original materials.
• In reality, the medical institution often alters,
forges, conceals or even destroy original
materials, that makes the patients hard to win.
IV. Second Step Forward: Limits on
Compensation (1987-2002)
• c. Organizer of technical identification: "The
father be the judge to try the son"
• Technical identification for medical malpractice is
undertaken by the local technical identification
committee organized by the medical administration.
• Technical identification for medical malpractice is
carried out at the levels of province, district and
county. There is no uniform identification
organization in the country.
IV. Second Step Forward: Limits on
Compensation (1987-2002)
• d. Compensation for damages: Limited Compensation
• If identified as medical accidents, can render lumpsum economic compensation according to the grades
of accidents, circumstances of accidents and
conditions of patients.
• Standard of compensation shall be formulated by the
governments of provinces, autonomous regions, or
municipality directly under the central government.
IV. Second Step Forward: Limits on
Compensation (1987-2002)
• C. The leftward step of compensation by the legal community
• Reply of Supreme People’s Court to the Question of How to Apply
Laws on the Medical Accident Compensation Case “Li Xinrong vs.
Tianjin Second Medical College Subsidiary Hospital” (Mar. 24, 1992):
• … shall properly handle (medical accidents) in accordance
with relevant provisions of General Principles of Civil Law
and Regulations on Handling Medical Accidents, or
referring to relevant provisions of Rules of the
Implementation of the Regulations on Handling Medical
Accidents of Tianjin, and according to the specific
conditions of the case.
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• A. Regulations on Handling Medical
Accidents was enacted in 2002
• A new administrative regulation named
"Regulations on Handling Medical Accidents"
replaced "Rules on Handling Medical
Accidents" in 2002.
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• B. Four dimensions of the rightward step by the
medical community
• a. Cause of action: uniform medical accidents
• Art. 2, Regulations on Handling Medical Accidents
• b. Burden of proof: on the patient party
• Art. 8, Regulations on Handling Medical Accidents
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• c. Organizer of technical identification：
"Medical entities shield one another“
• 1. The right to organize technical
identification for medical malpractice is
shifted from medical administrations to
medical associations.
• 2. National level technical identification
becomes available.
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• d. Compensation for damages: No compensation
for death
• According to Art. 50 of Regulations on Handling
Medical Accidents, the amount of compensation for a
medical accident includes 11 items:
• 1. the medical expense,
• 2. the compensation for income loss of the patient,
• 3. the food allowance for hospitalization
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
•
•
•
•
•
•
•
•
4. the expense for looking after the patient
5. the living allowance for the disabled
6. the disability allowance for appliance
7. the funeral expense
8. the living expense for the dependent
9. the traffic allowance
10. the lodging allowance
11. the compensation for mental injury
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• C. The leftward step of burden of proof by the legal
community
• Stipulations of Supreme People’s Court on Evidences in
Civil Action (2001) Article 4 (8)
• 8. In tort actions caused by medical practice, medical
institutions shall bear the burden of proving the lack of
causal relation between medical practice and harmful
consequences and the lack of medical faults.
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• D. Three dual systems of liability for medical
malpractice
• a. Dual system of cause of action
• 1. Liability for medical accident-- Regulations on
Handling Medical Accidents (2002)
• 2. Liability for medical fault-- Judicial Interpretation
on Compensation for Personal Injury (2003)
• Interpretation of the Supreme People's Court of Some
Issues concerning the Application of Law for the Trial of
Cases on Compensation for Personal Injury (2003)
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• b. The dual system of compensation criteria:
300,000 RMB worth of gap for death in Beijing
• 1. Art. 50 of Regulations on Handling Medical
Accidents: Maximum of 100,000 RMB
• 2. Art. 17 of Judicial Interpretation on
Compensation for Personal Injury: Maximum of
400,000 RMB
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• c. Dual system of technical identification for
medical malpractice
• Notice of Supreme People’s Court on Hearing Civil
Cases of Medical Disputes Referring to Regulations
on Handling Medical Accidents (2003)
• 1. Medical identification
• 2. Judicial identification
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• E. Increasing Disputes between doctors and patients
• a. The defensive and passive medical treatments cause
the increasing of disputes
• 1. Defensive Medical Treatments
• To avoid serious medical lawsuit and compensation,
the medical institution normally requires the patient to
receive excessive examination as a proof.
• 2. Passive Medical Treatments
• The medical institution avoid or refuse to give risky
medical treatments.
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• b. Practical Data of Disputes
• In June and July, 2005, China Hospital Association
initiated a survey in 270 hospitals.
• On average, over 30 disputes occur in a 3A (Third-level
Grade-A )hospital every year, and more than 1 million
RMB is compensated for these disputes.
V. Third Step Forward: Defensive and
Passive Medical Treatment (2002-2010)
• 73.33% of hospitals where doctors were assaulted,
threatened and abused.
• 59.63% of hospitals where patients, out of
dissatisfaction with the medical results, besieged and
threatened hospital superintendents.
• 76.67% of hospitals where patients and their families
refused to leave hospital and pay the bill after treatment.
• 61.48% of hospitals where patients' families placed
wreaths and mourning halls after the patients died.
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• A. Questions for the reform of four dimensions of
Liability for Medical Malpractice
• a. Cause of Action
• 1. Liability for Medical Accidents?
• 2. Liability for Medical Fault?
• b. Burden of Proof
• 1. Presumed Fault?
• 2. Presumed Causation?
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• c. Organizer of Technical Identification
• 1. Medical Identification?
• 2. Judicial Identification?
• d. Compensation for Damages
• 1. Limits of Compensation for Medical Malpractice?
• 2. Application of Uniform Compensation for Physical
Injury?
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• B. The basic goals for Tort Liability Law to reform
the medical compensation system
• a. To establish a uniform cause of action for
medical malpractice
• b. To seek the balance between the patient
and medical institution
• c. To promote the sound development of
social medicare system
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• C. Four dimensions in Tort Liability Law
• Tort Liability Law
• enacted on Dec. 26th, 2009, and it took effect
as of July 1st, 2010.
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• a. Cause of Action: Liability for Injury in
Medical Treatment
• 1. Creatively adopt a uniform term- “Liability
for Injury in Medical Treatment”
• The concept of Liability for Injury in Medical
Treatment breaks the connection between
Tort Liability Law and Regulations on
Handling Medical Accidents, making the court
no longer bound by the latter.
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• 2. Correctly defines there basic types of
liability for injury in medical treatment
• 1)Liability for Breaching Medical Ethical
Duties (Art. 55)
• 2)Liability for Breaching Medical Technical
Duties (Art. 57)
• 3)Liability for Medical Products (Art. 59)
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• b. Burden of Proof
• 1. Mainly on the patients
• Art. 54, Tort Liability Law
• If a patient suffers injury in the course of
diagnosis and medical treatment activities,
and the medical institution or its medical
personnel are at fault, the medical institution
shall bear compensatory liability.
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• 2. Fault of medical institution is presumed in special circumstances
• Art, 58, Tort Liability Law
• If a patient is injured, for any of the following circumstances,
fault of medical institution is presumed:
• (1) Violation of provisions of laws, administrative regulations,
ministerial rules, other standards regarding diagnosis and
medical treatment;
• (2) Concealing or refusing to provide medical record
materials related to the dispute;
• (3) Falsifying, distorting or destroying medical record
materials.
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• c. Organizer of Technical Identification is
not clear in Tort Liability Law
• Tort Liability Law dose not deal with in
this hot potato.
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
• d. Compensation for Damages: uniform standard
for physical injury in Tort Liability Law
• Art16. [One who] infringes on another, [and]
causes physical injury, shall compensate for the
reasonable expenses of medical care, nursing, and
transportation, etc. for the purpose of therapy and
restoring good health, as well as reduced income
due to loss of working time. [One who] causes
disability shall also pay expense for prostheses and
compensation for disability. [One who] causes death
shall also pay funeral expenses and death benefits.
VI. First step backward: Uniform Liability
for Injury in Medical Treatment (2010-)
•
D. Organizer of Technical Identification in Judicial interpretation
• Supreme People’s Court’s Notice on Questions of
Application of Tort Liability Law of P. R. China, III.
People’s court apply Tort Liability Law of P. R. China to hear
civil cases, if a medical damage identification is needed
according to the application of the parties or the decision of
people’s court within its authority, shall organize identifications
in accordance with Decisions of the Standing Committee of the
National People’s Congress on the Administrative Questions of
Judicial Expertise, Stipulations of Supreme People’s Court on
the Administration of Foreign Entrustment of Identifications,
Evaluations, Auctions and Other Work, or the provisions of
relevant state departments.
VII. Another Step backward or forward in
the Future Civil Code of P.R. China?
• A. The Drafting of Civil Code of P.R. China
• The structure of Draft of Civil Code of China officially
discussed by NPC on Dec. 23, 2002, with
corresponding law in force now (next slide):
VII. Another Step backward or forward in
the Future Civil Code of P.R. China?
•
•
•
•
•
•
•
•
•
(1) General Principles of Civil Law (1986)
(2) Property Right Law (2007)
(3) Contract Law (1999)
(4) Personal Right Law( to be drafted in 2012)
(5) Marriage Law (2001)
(6) Adoption Law (1999)
(7) Succession Law (1985)
(8) Tort Liability Law (2009)
(9) Applicable Rules of Civil Relationship Governing
Foreign Affairs (2010)
VII. Another Step backward or forward in
the Future Civil Code of P.R. China?
• B. New Steps in the Future Civil Code
• a. Cause of Action
• 1. The "then and there medical level" as the
criterion to judge medical misconduct is too
abstract
• 1)The level of hospitals
• 2)The level of physicians
VII. Another Step backward or forward in
the Future Civil Code of P.R. China?
• 2. To treat medical institutions as drug
sellers may harm their legitimate interests.
• 1)Blood supplier
• 2)Prescribed and non-prescribed medicines
• 3)Medical devices
VII. Another Step backward or forward in
the Future Civil Code of P.R. China?
• b. Burden of Proof
• 1. Prima facie cases
• 2. Expert witness
VII. Another Step backward or forward in
the Future Civil Code of P.R. China?
• c. Organizer of Technical Identification
• 1. Stipulating identification system for
medical malpractice in the Civil Code
• 2. Medical expert identification system under
the judicial frame.
VII. Another Step backward or forward in
the Future Civil Code of P.R. China?
• d. Compensation for Damages
• 1. Proportional Liability
• 2. Limit of compensation for emotional
harm in medical malpractice
• 3. Payment at regular intervals
Thank you!
•Zhu WANG
• LLD., Associate Professor
• Law School of Sichuan University
• [email protected].