See, e.g., “Doctor/Patient Conflicts Become More Common,” China Daily, August 8, 2001, available online at <http://www.chma.org.cn/english/2001/Aug/17189.htm> (last visited on February 13, 2005).+(last+visited+on+February+13,+2005).>Google Scholar

See Jiang, D., “Thoughts on the Practice of the Regulation on the Handling of Medical Accidents,” (guan yu yi liao shi gu chu li tiao li de shi jian si kao) National Judges College Law Journal (fa lu shi yong) 11 (2002): 53–56, at 55.Google Scholar

See First Civil Branch of Jiang Su High People's Court, (jiang su sheng gao ji ren min fa yuan min yi ting) “Survey Report Regarding Cases of Disputes of Medical Harm Compensation,” (guan yu yi liao sun hai pei chang jiu fen an jian de diao cha bao gao) People's Judicature (ren min si fa) 10 (2002): 21–25, at 21.Google Scholar

Song, Y. Xiang, H. Luo, W., “Causes of the Aggravation of Medical Disputes and Their Corresponding Policy,” (yi liao jiu fen ji hua de yuan yin yu dui ce) The Chinese Health Service Management (zhong guo wei sheng shi ye guan li) 5 (2000): 290–291, at 290. Other listed causes included biased mass media reports and inappropriate responses by health care facilities and health care workers. See also Wei, J., “Thoughts on Medical Disputes and Corresponding Legal System,” (dui yi liao jiu fen ji qi fa lu zhi du de si kao) Chinese Medicine Bulletin (zhong hua yi xue cong kan) 1, no. 12 (2001): 120–122, at 120; Cheng, H., “Civil Liability in Medical Accidents,” (yi liao shi gu zhong de min shi ze ren) Chinese Lawyer (zhong guo lu shi) 6 (1998): 24–25, at 24.Google Scholar

LEXIS PRCLEG 2276 (March 13, 2003).Google Scholar

As set forth in Article 1 of the 2002 regulation, one of the purposes of the regulation was maintaining an orderly and safe environment for medical practice. Article 59 of the 2002 regulation provides for criminal penalties or other punishments for anyone who “picks quarrels and stirs up trouble.” Similarly, Article 40 of the Law on Practicing Doctors, which was promulgated on June 26, 1998 by the Standing Committee of the National People's Congress, provides punishment for “[t]hose who obstruct medical practice by doctors according to law, insult, slander, threat or beat up doctors. …” The adoption of that law in 1998 provides further evidence that violence against doctors was perceived as a serious problem for which a legal solution was required.Google Scholar

Chen, J., Chinese Law: Towards an Understanding of Chinese Law, Its Nature and Development (The Hague: Kluwer Law International, 1999): At 21–22.Google Scholar

Id. at 31, 40–44; Wang, C. Zhang, X., eds., Introduction to Chinese Law (Hong Kong: Street & Maxwell Asia, 1997): At 12; Wang, G. Mo, J., eds., Chinese Law (London: Kluwer Law International, Ltd. 1999): At 2–3.Google Scholar

Wang, Mo, , supra note 8, at 6–8, 19.Google Scholar

Wang, Zhang, , supra note 8, at 18 (“Although the Constitution is regarded as the paramount law in the country, it nevertheless cannot be quoted in judicial verdicts and administrative decisions as a direct legal ground for solving concrete disputes and problems”); Chow, D., The Legal System of the People's Republic of China in a Nutshell (St. Paul: West Group, 2003): At 78 (“Many scholars in the PRC view the Constitution as declaratory and as stating policy and doubt whether it has direct legal effect in the absence of implementing legislation”) But see Shen, K., “Is It the Beginning of the Era of the Rule of the Constitution?: Reinterpreting China's First Constitutional Case,” Pacific Rim Law and Policy Journal 12 (2003): 199–231 (discussing the potentially groundbreaking use of a constitutional provision by the Supreme People's Court in civil litigation involving the right to education.)Google Scholar

See Wang, Zhang, , supra note 8, at 18–20; Wang, Mo, , supra note 8, at 8–11. Unlike the American use of the term “law” to include all types of binding legal authority at any level of government, English translations of Chinese legal materials generally limit the term “law” (falu) to enactments of the NPC or its Standing Committee. Chow, , supra note 10, at 153. But see Wang, Mo, , supra note 8, at 8 (“The form or title of the legislation is not significant. What is important is the body which enacts it.”)Google Scholar

Wang, Zhang, , supra note 8, at 23; Chow, , supra note 10, at 215–217.Google Scholar

See generally, Wang, Mo, , supra note 8, at 15–21; Wang, Zhang, , supra note 8, at 23–26. Theoretically, judicial decisions do not create binding precedent, but they have a strong impact as a practical matter. Wang, Zhang, , supra note 8, at 21.Google Scholar

Wang, Zhang, , supra note 8, at 16–17. See also Liu, N., “A Vulnerable Justice: The Finality of Civil Judgments in China,” Columbia Journal of Asian Law 13 (1999): 35–98, at 60–61 and nn. 89–91. Moreover, as a practical matter, the Communist Party of China has the power to control nominations for positions in government agencies, including the nomination of judges. Wang, Zhang, , supra note 8, at 25; Chow, , supra note 10, at 128–29.Google Scholar

Liu, N., supra note 14, at 60–61 and nn. 89–91; Chow, , supra note 10, at 78–81, 142–143. Similarly, there was no separation of powers in traditional Chinese law, in which administrative officials also served as prosecutors and judges. Wang, Zhang, , supra note 8, at 6; Chen, , supra note 7, at 16.Google Scholar

See note 9 and accompanying text supra. In addition, legislative powers are not limited to the people's congresses in the legislative branch. Chow, , supra note 10, at 142–156.Google Scholar

Wang, Zhang, , supra note 8, at 15–16.Google Scholar

Chow, , supra note 10, at 86–87.Google Scholar

One exception to uniformity under the 2002 regulation is that military medical facilities will have their own system for handling medical accidents, although that system will be based on the 2002 regulation.Google Scholar

See Chen, , supra note 7, at 3–17, 30; Wang, C. Zhang, , supra note 8, at 5–9.Google Scholar

Chen, , supra note 7, at 17 (“An abstract concept of individual was conspicuously lacking in traditional Chinese law”); Wang, Zhang, , supra note 8, at 5.Google Scholar

Chen, , supra note 7, at 15; Wang, Zhang, , supra note 8, at 6Google Scholar

Wang, Zhang, , supra note 8, at 6. See also Lo, V. I., “Resolution of Civil Disputes in China,” UCLA Pacific Basin Law Journal 18 (2001): 117–156, at 152 (“the general assumption that Chinese are averse to litigation …”).Google Scholar

Id. at 140.Google Scholar

Note, “Class Action Litigation in China,” Harvard Law Review 111 (1998): 1523–1541, at 1523. The current use of litigation in China includes suits against government officials for violation of rights. Id. at 139–40, 152. “Together with the surge in litigation involving administrative malfeasance in recent years, the rising incidence of civil litigation largely reflects that Chinese citizens are no longer afraid to go to the court.” Id. at 152. See also Chen, , supra note 7, at 166 (“The idea that a citizen can sue the government and that a government is liable for its maladministration is revolutionary in a legal culture where government officials had the status of parents and parents were perceived to be infallible”)Google Scholar

Mohr, J. C., “American Medical Malpractice Litigation in Historical Perspective,” JAMA 283, no. 13 (2000): 1731–1737, at 1732 (“The onset of medical malpractice litigation corresponded with a sharp decline of religious fatalism and a dramatic rise of religious perfectionism, both of which were associated with the revivals of the 1820s and 1830s”)CrossRefGoogle Scholar

Fried, B. J. Gaydos, L. M., eds., World Health Systems: Challenges and Perspectives (Chicago: Health Administration Press, 2002): At 345.Google Scholar

Hsiao, W. C. L., “The Chinese Health Care System: Lessons for Other Nations,” Social Science & Medicine 41, no.8 (1995): 1047–1055, at 1054.CrossRefGoogle Scholar

Hsiao, , supra note 28, at 1052. See generally, The World Bank, CHINA 2020: Financing Health Care: Issues and Options for China (Washington, D.C.: World Bank, 1997).CrossRefGoogle Scholar

World Bank, supra note 29, at 2–3.Google Scholar

Akin, J. S. Dow, W. H. Lance, P. M., “Did the Distribution of Health Insurance in China Continue to Grow Less Equitable in the Nineties? Results from a Longitudinal Study,” Social Science & Medicine 58 (2004): 293–304, at 295.CrossRefGoogle Scholar

World Bank, supra note 29, at 47 (“Nearly 90 percent of farm households now pay out of pocket for almost all their health services”)Google Scholar

World Health Organization, World Health Report 2000-Health Systems: Improving Performance (2000): 35–39, 188–91 (Annex Table 7).Google Scholar

See Henderson, G. et al., “Distribution of Medical Insurance in China,” Social Science & Medicine 41, no. 8 (1995); 1119–1130; Akin, et al., supra note 31, at 294–95; World Bank, supra note 29, at 2.CrossRefGoogle Scholar

See Hsiao, , supra note 28, at 1051 (noting that neither the national MOH nor the provincial health bureaus have “regulatory jurisdiction” over hospitals operated by state-owned enterprises.) Similarly, civilian health agencies do not have authority over military health care facilities. As Gordon Liu has pointed out, “[s]ince these institutions are not accountable to any single body, their financial and quality performance are poorly monitored and evaluated, resulting in over-billing, over-prescribing, and over-utilization of health services.” Liu, G. et al., “Urban Health Care Reform Initiative in China: Findings from its Pilot Experiment in Zhengjiang City,” International Journal of Economic Development (December, 1999): 1–13.Google Scholar

Hsiao, , supra note 28, at 1051, 1053; Pei, L. et al., “Hospital Management in China in a Time of Change,” Chinese Medical Journal 115, no. 11 (2002): 1716–1726 at 1722.Google Scholar

World Bank, supra note 29, at 2–3, 19–20, 42–43; Hsiao, , supra note 28, at 1051, 1053; Pei, et al., supra note 36, at 1722–23; Fan, R., “Modern Western Science as a Standard for Traditional Chinese Medicine: A Critical Approach,” Journal of Law, Medicine & Ethics 31, no. 2 (2003): 213–221 at 221, n.6. In addition, it appears that prices for the use of some high technology equipment may have been based on unrealistically low estimates of volume and equipment life in the data that was provided to price-setting agencies. Pei et al., supra note 36, at 1722–23; Hsiao, , supra note 28, at 1051–52.Google Scholar

Pei, et al., supra note 36, at 1719, 1723.Google Scholar

World Bank, supra note 29, at 5–6, 22, 42–43, 45–46. According to the World Bank, duplication causes supplier-induced demand, and, therefore, China should impose governmental supply-side controls. Id. at 6, 45–46. It is interesting to note that the supply-side controls recommended by the World Bank would be similar to the much-criticized U.S. program of certificate of need (CON) regulation. See, e.g., Conover, C. J. Sloan, F. A., “Does Removing Certificate of Need Regulations Lead to a Surge in Health Care Spending,” Journal of Health Politics, Policy & Law 23, no. 3 (1998): 455–481.CrossRefGoogle Scholar

See generally, Institute of Medicine, To Err is Human: Building a Safer Health System (Washington, D.C.: Institute of Medicine, 1999): At 4 (“Building safety into processes of care is a more effective way to reduce errors than blaming individuals …”); Jost, T. S., “Oversight of the Quality of Medical Care: Regulation, Management, or the Market?” Arizona Law Review 37 (1995): 825–868.Google Scholar

See Liu, G. et al., “Privatization of the medical market in socialist China: A historical approach,” Health Policy 27 (1994): 157–174, at 169 (“Like in most other developing countries, many Chinese private medical practitioners are not well trained or formally educated.”)CrossRefGoogle Scholar

See Hsiao, , supra note 28, at p. 1053. In addition, according to Hsiao, , “China also lacks a system to monitor quality of services or improve services according to changes in patient preferences.”Google Scholar

Writing in 1991, Localio et al. suggested that the availability of health insurance in the United States might be one of the reasons that so few injured patients pursue medical malpractice claims. Localio, A. R. et al., “Relation between Malpractice Claims and Adverse Events Due to Negligence,” N. Engl. J. Med. 325, no. 4 (1991): 245–251, at 249. Thirteen years later, William Sage noted that higher levels of uninsurance and the widespread use of cost containment techniques by health insurers has left liability insurance “as one of the few remaining unconstrained sources of health care financing for severe injury.” Sage, W. M., “The Forgotten Third: Liability Insurance and the Medical Malpractice Crisis,” Health Affairs 23, no. 4 (2004): 10–21, at 16.CrossRefGoogle Scholar

See Fan, , supra note 37, at 215 and 219.Google Scholar

In contrast, to impose vicarious liability on a hospital for the negligence of a physician in the U.S., the plaintiff ordinarily would need to litigate factual issues regarding the physician's relationship with the hospital as an actual employee or agent. Alternatively, a plaintiff might need to prove that the hospital held out the doctor to the public as its ostensible agent. A U.S. plaintiff might also need to prove that the hospital breached its own duty to the patient by failing to properly screen independent physicians who were applying for medical staff membership and clinical privileges.Google Scholar

Constitution of the P.R.C., Art. 45 (China Legal Publishing House, 2004).Google Scholar

General Principles of the Civil Law of the P.R.C., Art. 98 (Law Press China 2002). See Chen, , supra note 7, at 51. See generally Jones, W. C., “Some Questions Regarding the Significance of the General Provisions of Civil Law of the People's Republic of China,” Harvard International Law Journal 28, no. 2 (1987): 309–331. But see Cohen, J. A., “Forward,” Harvard International Law Journal 28, no. 2 (1987): 239–247, at 242–43 (suggesting that Professor W. C. Jones underestimates the significance of the GPCL as a practical matter.) In addition to the GPCL, the P.R.C. has adopted a Civil Procedure Law that became effective in 1991.Google Scholar

GPCL, supra note 47, at Art. 98.Google Scholar

GPCL, supra note 47, at Art. 119.Google Scholar

Wang, Mo, , supra note 8, at 160.CrossRefGoogle Scholar

Song, L. et al., “The Attribution of Criminal Responsibility in Medical Liability Incidents,” (yi liao ze ren shi gu zhong xing shi ze ren de que ding) Chinese Journal of Hospital Administration (zhong hua yi yuan guan li za zhi) 5, no. 3 (1989): 161, quoted in Liu, X. Chang, L., “Summary of Opinions Regarding Criminal Liability for Medical Liability Incident,” (yi liao shi gu xing shi chu fa guan dian zong shu) Journal of Law & Medicine (fa lu yu yi xue za zhi) 3, no. 2 (1996): 60–62, at 60.Google Scholar

Id. Though, many patients and their family members were not satisfied with administrative management because administrative officials did not have much legal authority.Google Scholar

Zhang, Q. Cai, S., “Retrospect Survey of the Handling of Medical Incidents in the PRC,” (wo guo chu li yi liao shi gu zhuang kuang hui gu diao cha) Chinese Journal of Forensic Medicine (zhong guo fa yi xue za zhi) 14, no. 3 (1999): 165–167, at 165.Google Scholar

Song, et al., see supra note 51, at 161. Criminal penalties have been imposed less frequently for medical malpractice since, see Zhang, Q., “Concise Summary of the Handling of Medical Incidents in the PRC,” (wo guo yi liao shi gu chu li de jian yao hui gu) Chinese Clinical Physician (zhong guo lin chuang yi sheng) 32, no. 3 (2004): 61–62, at 61.Google Scholar

Li, B., “Recommending the Addition of Crime of Severe Medical Liability Incident,” (jian yi zeng she zhong da yi liao shi gu zui) Deiking University Law Journal (zhong wai fa xue) 2 (1994): 52–54, at 52.Google Scholar

Luo, J., “Investigation into the Distribution of ‘Medical Accidents and Disputes’ Articles in Journals in Our Country,” (guo nei yi liao shu gu ji jiu fen zai wen qi kan fen bu diao cha) China Health Law (zhong guo wei sheng fa zhi) 8, no. 5 (2000): 23. From 1995 through 1999, there were 274 articles addressing the 1987 Regulation in the 10 leading journals regarding law and medicine in the PRC.Google Scholar

Guo, Q. Chen, X., “Law of Medical Disputes: Retrospectation and Expectation,” (yi liao jiu fen chu li shi yong fa lu hui gu ji zhan wang) Hospital Administration Journal of China PLA (jie fang jun yi yuan guan li za zhi) 10, no. 2 (2003): 182–183, at 182–183; Cui, L. I, “Comment on the Reform and Perfectation of Medical Law System,” (lun yi liao fa lu zhi du de gai ge yu wan shan) Administration and Law (xing zheng yu fa) 3 (2001): 63–65, at 63–64; Gao, H. Huang, X., “Legal Study in Medical Disputes,” (yi liao jiu fen de fa lu yian jiu), People's Judicature (ren win si fa) 10 (2001): 30–33, at 33.Google Scholar

Bates, P. W., “The Role of Legislation in Health Services Development,” (with Particular Reference to China and Australia) Medical Law 13 (1994): 433–449, at 443.Google Scholar

Zhang, B. et al., “Exploration of and Suggestion for Current Medical Law System,” (dui xian xing yi liao fa lu zhi du de tan too yu jian yi) Chinese Journal of Hospital Administration (zhong hua yi yuan guan li za zhi) 15, no. 4 (1999): 222–224, at 222–223.Google Scholar

The concept of “treatment and nursing activities” was broadened in the May 10, 1988 supplement administrative interpretation on the 1987 regulation by Ministry of Health (wei sheng bu guan yu yi liao shi gu chu li ban fa ruo gan wen ti de shuo ming). Accordingly, maintenance and management activities serving diagnostic, treatment and nursing activities were included in the definition of liability accident. Thus, patient death due to power failure during a surgical operation may be regarded as a liability incident. See Bates, P. W., supra note 58, at 443. Unfortunately, this specific expansion of health care activities was neglected. See Hu, X., “Brief Analysis of Several Questions in Urgent Need of Solutions in Applying the 2002 Regulation,” (qian xi tiao li guan che shi shi zhong qi dai jie jue de ji ge wen ti) Journal of Law & Medicine (fa lu yu yi xue za zhi) 9, no. 4 (2002): 193–196, at 194.Google Scholar

The 1988 supplement interpretation did not state clearly whether administrative staff of health care facilities were included as actors who might cause liability. In addition, the 1988 supplement interpretation re-emphasized the requirement of “direct causation” and “direct responsibility” in imposing administrative penalty. It is dubious whether any administrative staff could be “directly responsible” for medical accidents in their usual administrative activities.Google Scholar

Zhang, B. Lu, Y. Huang, Y., “Current Problems in the Legal System of Managing Medical Disputes and Reform Recommendation,” (xian xing chu li yi liao shi gu jiu fen fa lu zhi du cuen zaide wen ti yu gai ge) Chinese Health Law (zhong guo wei sheng fa zhi) 7, no. 4 (1999): 13–15, at 13. According to a survey on 12,815 subjects in 1999 by Chinese Association of Patients and Families (Zhong Guo Bing Yuan Ji Jia Shu Xie Hut), 52.76% reported that they were harmed by medical practice in the past year; less than 10% of people were satisfied with either medical service or drugs. See Chen, H., “Theoretical Exploration of Further Perfectation of the System of Managing Medical Accidents,” (jin yi bu wan shan yi liao shu gu chu li zhi du de li lun tan tao) Modern Law Science (dang dai fa xue) 6 (1999): 45–47, at 45. It is doubtful that these complaints could be addressed by the narrow definition of liability incident in the 1987 Regulation.Google Scholar

On September 20th, 1994 in a response to Henan Provincial Health Department's questions regarding the 1987 Regulation, the PRC Ministry of Health allowed some discretionary compensation for victims of medical negligence that could not be categorized as medical incident. However, no practical direction was given on how to implement this breakthrough. See Zhang, et al., supra note 62, at 13. In a sample of 100 cases from a provincial-wide survey conducted by Jiang Su High People's Court, only 5 cases were recognized as liability incidents. However, medical negligence was found in most of 100 cases. See First Civil Branch of Jiang Su High People's Court, supra note 3, at 23.Google Scholar

Hu, X., “Re-discussing the Evaluation of the Regulation on Dealing with Medical Incidents,” (zai lun dui yi liao shi gu chu li ban fa de ping jia – bu ke lan yong min fa tong ze) The Chinese Health Service Management (zhong guo wei sheng shi ye guan li) 7 (1998): 364–367, at 365; Zhang, X., “Research into Several Questions Regarding Medical Accident Liability,” (yi liao shi gu pei chang ze ren ruo gan wen ti yian jiu) Journal of the Renmin University of China (zhong guo ren min da xue xue bao) 3 (1999): 83–88, at 84.Google Scholar

Chen, Y. Jin, Y., “Discussing Current Legal System in Managing Medical Accident in Our Country,” (lun wo guo mu qian yi liao shi gu chu li defa lu zhi du) Journal of Huaqiao University (Philosophy and Social Science) (hua qiao da xue xue bao [zhe she ban]), 3 (1999): 61–66, at 62.Google Scholar

Their arguments are as follow: For guaranteeing citizens' right to health care, government healthcare facilities have the obligation to offer affordable healthcare to citizens as part of social welfare administration. It is doctors who actually determine the contents of health care. Civil contract is not suitable for explaining these characteristics. See Hu, , supra note 64; Liu, X. Zeng, Y., “Theoretical Exploration of Principles of Limited Medical Liability,” (the yi liao sun hai xian e pei chang yuan ze de li lun tan tao) Journal of Law & Medicine (fa lu yu yi xue za zhi) 6, no. 2 (1999): 23–25, at 23.Google Scholar

Wei, S., “Arguments on Establishing Legal System of Compensating Medical Accidents,” (jian li yi liao shi gu sun hai pei chang fa lu zhi du zheng yi) Fujian Tribune: An Economics and Sociology Monthly (fu jian lun tan: Jing ju she hui ban) 9 (1997): 62–64, at 62; Lin, S., “Analysis in and Policy Exploration of Economic Compensation for Medical Accidents,” (yi liao shi gu jing ji bu chang wen ti fen xi ji dui ce) Journal of Shandong Medical University (social sciences) (san dong yi ke da xue xue bao [she hui ke xue ban]) 3 (1998): 6–8, at 6.Google Scholar

The amounts of one-time “economic compensation” for patients’ deaths ranged from 3,000 to 15,000 RMB. See Zhang, et al., supra note 59, at 224; Wei, , id. at 63.Google Scholar

Wei, , id., at 62; Qiao, S., “Discussing the Legal Problems of the Regulation on Dealing with Medical Incidents and Its Perfectation,” (lun yi liao shi gu chu li fa de fa lu wen ti ji wan shan) National Judges College Law Journal (fa lu shi yong) 3 (2001): 32–34, at 34.Google Scholar

Shu Fa, W., id., at 62Google Scholar

Id., at 62Google Scholar

Id., at 63; Zhang, B. et al., “Deficits and Policy of Current Medical Law System,” (xian xing yi liao fa lu zhi du de que xian yu dui ce) Science Technology and Law (ke ji yu fa lu) 3 (1998): 54–57, at 56; Wang, L., “Concept of Consumer and the Management Range of Consumer Rights and Interests Protection Law,” (xiao fei zhe de gai nian ji xiao fei zhe quan yi bao hu fa de tiao zheng fan wei) Political Science and Law (zheng zhi yu fa lu) 2 (2002): 3–12, at 11.Google Scholar

Gao, Z., “Comments on the Establishment of Relevant Legal System to Manage Medical Disputes,” (lun yi liao jiu fen chu li xiang guan fa lu zhi du jian she) The Chinese Health Service Management (zhong guo wei sheng shi ye guan li) 4 (2002): 223–225, at 223. Yang, C., “Legal Application in Medical Disputes,” (yi liao jiu fen de fa lu shi yong) Journal of Shanghai University (Social Science) (shang hai da xue xue bao [she hui ke xue ban]) 6, no. 6 (1999): 81–85, at 83. Qiao, , supra note 69, at 33Google Scholar

Cui, , supra note 57: 63–65, at 63–64. Gao, , id. at 223. Qiao, , id. at 33. As Professor Dongdong Sun pointed out in an interview, according to his knowledge, eight deputy chiefs of provincial health departments were actually the presidents of provincial hospitals. It was hard for them not to consider the interests of these hospitals; available at <http://cul.sina.com.cn/s/2002-04-02/11422.html> (last visited June 7, 2005).+(last+visited+June+7,+2005).>Google Scholar

Cui, , id. at 63–64. Sun, D. Wu, J., “Opinions on the Deficits and Reform of Medical Accident Authentication System,” (wo guo yi liao shi gu jianding ti zhi de bi duan yu gai ge) Deiking University Law Journal (zhong wai fa xue) 5 (1998): 95–97, at 96. Qiao, S., id. at 33; Pang, C., “Opinions on the Regulation on Dealing with Medical Incidents,” (guan yu yi liao shi gu chu li ban fa de ji dian yi jian) Journal of Law & Medicine (fa lu yu yi xue za zhi) 4, no. 2 (1997): 67–68, at 67.Google Scholar

Wang, N. Wan, Y. Di, S. Zhang, F., eds., An Easy Guide to Help You Understand Law – Medical Dispute (fa lu bang zhu yi dian tong- yi liao jiu fen) (Beijing: Zhong Guo Jian Cha Chu Ban She, 2002): At 30–31.Google Scholar

Zhao, X., “Problems in Legislation Inequity and Practice of the Regulation on Dealing with Medical Incidents,” (yi liao shi gu chu li ban fa li fa bu gong han shi jian de wen ti) Journal of Liaocheng Teachers University (liao cheng shi fan xue yuan xue bao) 2 (2000): 47–51, at 48. According to Article 119 of Criminal Procedure Law, the courts have to power to assign experts to conduct medical examination. According to Article 35 of Administrative Procedure Law and Article 72 of Civil Procedure Law, the courts' power to assigning experts to conduct forensic examination is restricted only by law, not by a regulation.Google Scholar

This is explicitly stated in Article 79 of the PRC Legislation Law, which has become effective since 2000.Google Scholar

In Article 119 of GPCL, compensation for medical injury must include the incurred medical fees, lost income, living fees for those disabled; compensation for death must include the burial fees and the living fees for the dependent of the deceased.Google Scholar

In 2001, the highest documented damage awarded to victims of medical accidents has reached 2,920,000 RMB. See Zheng, X., “How to Reasonably Compensate for Medical Negligence?” (yi liao guo shi zen me pei cai he li) Legal Daily (fa zhi ri bao) 9, no. 6 (2001): At 5. However, the highest one-time economic compensation is only 15,000 RMB (about 1,800 US dollars). See Zhang, et al., supra note 59, at 224; see also Shu Fa, W., supra note 67, at 63.Google Scholar

See March 24, 1992 Supreme People's Court's reply to Tian Jin High People's Court regarding how to apply laws in adjudicating compensations for medical incidents (guan yu li xin rong su tian jin shi di er yi xue yuan fu she yi yuan yi liao shi gu pei chang yi an ru he shi yong fa lü wen ti de fu han). Unfortunately, in that reply Supreme People' Court did not clarify how to reconcile the conflicts among GPCL, the 1987 Regulation and other local regulations. See Jiang, B., “Evaluating and Analyzing Current Legal System of Medical Incident Management in Our Country,” (wo guo xian xing yi liao shi gu chu li fa lu zhi du ping xi) Jiansu Social Science (jiang su she hui ke xue) 6 (1998): 87–91, at 88–89.Google Scholar

Xiao, W., “Research into Several Legal Problems of Medical Compensation: Legal Analysis of 92 Cases of Compensations for Medical Harm,” (yi liao pei chang ruo gan fa lu wen ti yan jiu: Dui 92 li yi liao sun hai pei chang su song an defa lu fen xi) Chinese Health Law (zhong guo wei sheng fa zhi) 8, no. 6 (2000): 22–26, at 22–23.Google Scholar

According to Article 63 of Civil Procedure Law, the courts also have the power to examine authentication conclusions before adopting them. See Jiang, F. Yang, W., “Comment on the Application of Law in Solving Medical Disputes,” (lun yi liao jiu fen jie jue fa lu shi yong) Chinese Hospital Management (zhong guo yi yuan guan li) 16, no. 9 (1996): 13–15, at 13–14; Xiao, , id. at 24.Google Scholar

First Civil Branch of Jiang Su High People's Court, supra note 63, at 23; Zhang, et al., supra note 59, at 222.Google Scholar

See October 10, 1989 Supreme People's Court's reply to Sichuan High People's Court regarding whether people's courts should take cased of medical accident disputes (zui gao ren min fa yuan guan yu dui yi liao shi gu zheng yi an jian ten min fa yuan ying fo shou li de fu han). SPC expressed clearly that disputes about the conclusions of technical authentication shall not be accepted; Wei Hua, X., supra note 82, at 24; Liu, J., “Research on problems of compensating medical accidents,” (yi liao shi gu pei chang wen ti yan jiu) Legal Science (fa xue) 10 (1998): 22–24, at 23.Google Scholar

Jiang, Yang, , see supra note 83, at 13–14. Yang, L., “Urgent Need for a Uniform Legal System of Medical Accident Management,” (yi liao shi gu chu li fa qi dai tong yi gui fan), Medicine and Philosophy (yi xue yu zhe xue) 20, no. 5 (1999): 10–12, at 10–11.Google Scholar

See October 10, 1989 Supreme People's Court's reply to Sichuan High People's Court, id. Many lay people may feel that they fall in the cleft between the administrative and the judicial systems; see Gao, Z. Zhao, J., “Preliminary Comment on the Question of Law Application in the Management of Medical Disputes,” (qian tan yi liao jiu fen chu li zhong de fa lu shi yong wen ti) Modern Law Science (dang dai fa xue) 5 (1999): 46–48, at 46; Lu, Y. Huang, Y. Zhang, B., “Exploring the Reform of Legal System of Managing Medical Accident Disputes,” (dui chu li yi liao shi gu jiu fen fa lu zhi du gai ge de tan tao) The Chinese Health Service Management (zhong guo wei sheng shi ye guan li) 6 (1998): 301–304, at 303.Google Scholar

Basically there have been three groups of arguments. The first group, represented by health care professionals, argued against the application of Consumer Protection Law to medical practices because: (1) healthcare facilities are enterprises of social welfare, not managers; (2) the results of treatment could not be guaranteed; (3) patients are not general consumers since the price of health care service is still below its cost due to government control; and (4) the application will make health care workers overcautious and in the long run stifle the innovation of medicine. The second group argued for the application because patients (consumers) still pay for health care service and drugs (products) they receive from health care facilities (managers). The third group argued for further differentiation of the characteristics of health care facilities such that only welfare-oriented health care facilities should not be covered by Consumer Protection Law. See Wang, L., supra note 72, at 9–10; Guo and Chen, see supra note 57, at 183.Google Scholar

In 1999, Si Chuan Province Lu Zhou City Middle People's Court stipulated that medical disputes should be covered by Consumer Protection Law; in 2000, Zhe Jiang Province People's Congress covered medical disputes in its implementation regulation of Consumer Protection Law in 2000. See Qing Wen, G. Xin Shan, C., id., at 182–83. As far as we know in July, 2004, Chong King City, Guang Dong Province, Tibet, Ji Lin Province, Shan Dong Province, Jiang Su Province, Hu Nan Province, Yun Nan Province, Liao Ning Province, and Gan Su Province also have regulations covering medical practices in the implementation of Consumer Rights and Interests Protection Law. However, it is unclear to us whether and how local people's courts and local health departments apply these regulations in handling medical accidents. Further interpretation is needed with regard to what liability health care facilities should bear for medical harm caused by their service to consumers. Both the 1987 Regulation and GPCL adopt rules of negligence in determining liability for medical accidents. The plausible interpretation is that health care facilities do not bear strict or no-fault liability for medical harms caused by their health care service. See Li, Y., “Mistake in the Question Asked by Conventional Legal Study: Comment on the Debate Regarding Whether Consumer Rights and Interests Protection Should be Applied in Medical Disputes,” (chuan tong fa xue wen ti shi zhi wu: Ping yo guan yi liao jiu fen shi fo shi yong xiao fei zhe chuan yi bao hu fa de too lun) Hunan Social Science (hu nan she hui ke xue) 2 (2003): 160–163, at 161.Google Scholar

Li, B., “Comment on the Essential Conditions of Crime of Medical Accident,” (lun yi liao shi gu zui de go cheng yao jian) Legal Forum (fa xue lun tan) 3 (2000): 64–67, at 64. See also Article 335 of 1997 Revised Criminal Law.Google Scholar

For example, in 1998 the PRC Practicing Doctors Law was adopted; in 1994, both Regulations on the Management of Nurses and Regulations on the Management of Health Care Facilities were adopted.Google Scholar

Zhou, X., “Exploring the Legal System of Compensation for Medical Harm,” (yi liao sun hai pei chang fa lu zhi du tan tao) Chinese Health Law (zhong guo wei sheng fa zhi) 8, no. 5 (2000): 17–21, at 18.Google Scholar

Although we do not have nation-wide statistics on the trend of medical malpractice litigation, some local statistical figures did give us a hint about this. See First Civil Branch of Jiang Su High People's Court, see supra note 63, at 21; Zhang, K. Chen, T., “The Specificity, Difficulty and Adjudication Policy of Current Cases of Medical Disputes (I),” (dang qian yi liao jiu fen an jian de te dian ji sheng pan dui ce [shang]) Judicature of China (lu shi sha long) (2003): 28–30, at 29; Wang, H., “Analysis of Accepted Cases of Medical Dispute,” (liao jiu fen shou li an jian fen xi) The Chinese Health Service Management (zhong guo wei sheng shi ye guan li) 6 (1999): 306–309, at 309–10.Google Scholar

Wang, , id. at 309; Xiao, , supra note 82, at 22.Google Scholar

In its March 24, 1992 reply to Tian Jin High People's Court (guan yu li xin rong su tian jin shi di er yi xue yuan fu shu yi yuan yi liao shi gu pei chang yi an ru he shi yong fa lu wen ti de fu han), it confirmed that the GPCL should be applied in the calculation of compensation in civil litigation of medical malpractice. In SPC's Law Interpretation No. 7 (2001) regarding interpretations for several questions of liability for spiritual injury in tort cases (zui gao ren min fa yuan guan yu que ding min shi qin quan jing shen sun hai pei chang ze ren ruo gan wen ti de jie shi, fa shi [2001] 7 hao), the SPC has allowed awarding damages for pain and suffering when infringement of rights to life or health is the basis of claims. Finally, in SPC's Law Interpretation No. 33 (2001) regarding the application of Civil Procedure Law (zui gao ren min fa yuan guan yu min shi su song zheng ju de ruo gan gui ding, fa shi [2001] 33 hao), health care facilities have been required to bear the burden of proof in showing the lack of fault on their side as well as the lack of causal relationship between the health care services and the patient's injury.Google Scholar

See Zhu, W., “Medical Accidents: Ten Years of Law Revision,” (yi liao shi gu: Shi nian xiu fa), available at <http://cul.sina.com.cn/s/2002-04-02/11422.html> (last visited on June 7, 2005); Zhu, Y., “Ten Years to Revise One Law: The Process of Drafting the ‘Regulation of Handling Medical Accidents’” (shi niam xiu yi fa: Yi liao shi gu chu li tiao li de qi cao guo cheng), available at <http://health.enorth.com.cn/sytem/2002/04/16/000313358.shtml> (last visited on June 7, 2005).+(last+visited+on+June+7,+2005);+Zhu,+Y.,+“Ten+Years+to+Revise+One+Law:+The+Process+of+Drafting+the+‘Regulation+of+Handling+Medical+Accidents’”+(shi+niam+xiu+yi+fa:+Yi+liao+shi+gu+chu+li+tiao+li+de+qi+cao+guo+cheng),+available+at++(last+visited+on+June+7,+2005).>Google Scholar

See generally, Ko, S., “Chinese Anti-Monopoly Law: An Introduction to Chinese Legislation,” Washington University Global Studies Law Review 3, no. 2 (2004): 267–275, at 270–71 (describing the procedure for developing regulations.)Google Scholar

See Wang, L., Ministry of Health's summary report to National People's Congress Education, Science and Culture regarding the revision of the Regulation on Dealing With Medical Incidents (wei sheng bu jiu yi liao shi gu chu li ban fa xiu ding xiang chuan guo ren da jiao ke wen wei yuan hui suo zuo de hui bao), 2000, available at <http://www.angelaw.com/medlaw/theory14.htm> (last visited on June 7, 2005). As Deputy Minister of Health, Wang Long De explained the directions of the revision in his 2000 brief to the NPC. (last visited on June 7, 2005). As Deputy Minister of Health, Wang Long De explained the directions of the revision in his 2000 brief to the NPC.' href=https://scholar.google.com/scholar?q=98See+Wang,+L.,+Ministry+of+Health's+summary+report+to+National+People's+Congress+Education,+Science+and+Culture+regarding+the+revision+of+the+Regulation+on+Dealing+With+Medical+Incidents+(wei+sheng+bu+jiu+yi+liao+shi+gu+chu+li+ban+fa+xiu+ding+xiang+chuan+guo+ren+da+jiao+ke+wen+wei+yuan+hui+suo+zuo+de+hui+bao),+2000,+available+at++(last+visited+on+June+7,+2005).+As+Deputy+Minister+of+Health,+Wang+Long+De+explained+the+directions+of+the+revision+in+his+2000+brief+to+the+NPC.>Google Scholar

See Song, R., “Thoughtway on the Lawmaking of ‘the Bylaw of Medical Accident Management,’” (yi liao shi gu chu li tiao li li fa si lu) Chinese Hospitals (zhong guo yi yuan) 6, no. 6 (2002): 17–19, at 17.Google Scholar

Tian, K., “A Try to Comment on the Management of Medical Accident Disputes,” (shi lun yi liao shi gu jiu fen de chu li fang shi) Journal of Nanjing Medical University (Social Science) (nan jing yi ke da xue xue bao [she hui ke xue ban]) 2 (2002): 85–88, at 8; Zhu, see supra note 96. The legislation process was criticized for its lack of public participation and hearing; see Huang, K. Sun, H., “Comment on the Legislation Deficits of the Regulation on Handling Medical Accidents,” (lun yi liao shi gu tiao li de li fa que xian), available at <http://article.chinalawinfo.com/article/user/article_display.asp?ArticleID=22023> (last visited on June 7, 2005).Google Scholar

See generally, Lo, , supra note 23, at 126, 155–156 (regarding alternative mechanisms of dispute resolution.) According to Article 46 of the 2002 regulation, negotiation, administrative handling (chu li) and mediation (tiao jie), and civil litigation are all available procedures of dispute resolution. Moreover, requests for administrative handling and administrative mediation may be separated. Administrative handling (chu li) is focused primarily on the administrative management of health care staff and facilities, as indicated by Article 35 and the title of Chapter 4. According to Article 42, the results of a technical authentication can provide the basis for administrative punishment of health care providers and for mediation between the parties. Although administrative handling could be construed broadly to include administrative mediation, administrative handling under Article 37 is not necessarily the same as administrative mediation under Articles 46 and 48. See Shi, M. Zhao, T. Wu, M. eds., “One Hundred Questions on the Regulation on the Handling of Medical Accidents,” (yi liao shi gu chu li tiao li bai wen) Beijing: Fa Lu Chu Ban She, 2002, at 75–76. Either party to the dispute may apply for administrative handling under Article 37, but an application under Article 48 for administrative mediation on the issue of compensation may only be filed if both parties agree to the application. Thus, it is possible that the two parties might agree to conduct authentication under the direction of the health department, but refuse to agree on an application for administrative mediation.Google Scholar

As referenced in Article 44, mediation may also be conducted in the people's court.Google Scholar

Also note that Art 39 allows for a second technical authentication if requested by a party.Google Scholar

This may impose incentives that are similar to the British system of attorney's fees in which the “loser pays.” See, generally, Rowe, T., “Shift Happens: Pressure on Foreign Attorney-Fee Paradigms from Class Actions,” Duke Journal of Comparative & International Law 13 (2003) 125–149, at 128 and n. 16.Google Scholar

The 2002 regulation does not address the type of procedure for technical authentication that the court should adopt. Instead, it is the Law (fa) 2003 No. 20 Notice from the Supreme People's Court that requires courts to adopt the procedure of technical authentication as stipulated in the 2002 regulation when they deal with medical accidents. For cases other than medical accidents, the courts have discretion to use procedures in accordance with the Civil Procedure Law or Criminal Procedure Law. The wording of this notice as regards forensic examination is as follow: “In adjudication of civil cases … when it comes to forensic examination of medical accidents, the conduct of those examinations shall be handed over to medical societies as stipulated in the 2002 regulation. When it comes to non-medical-accident cases, forensic examination shall be conducted according to the Regulation on the Management of Forensic Examinations Entrusted by People's Courts to External Entities.”Google Scholar

According to William Sage, the system that is “usually but oddly called ‘no-fault’” is really a system of strict liability. Sage, , supra note 43, at 19. In China, the GPCL recognizes liability without fault, but only if that liability is authorized by another law. GPCL, supra note 47, at Art. 106. See also Wang, Mo, , supra note 8, at 167–168.Google Scholar

Art. 2. Although the regulatory definition of “medical accident” incorporates the tort law concept of negligence, plaintiffs in China apparently have the option to assert claims against hospitals for breach of contract as well. As Wang and Mo have explained, Article 106 of the GPCL “appears to have imposed a tortious liability partially by way of a contractual obligation.” Wang, Mo, , supra note 8, at 168. This appears to be distinguishable from the U.S. system, in which liability for medical malpractice is based on tort rather than contract. In U.S. jurisdictions, the establishment of a physician-patient relationship is based on contract, and it is the creation of that relationship which imposes a duty to the patient. However, a patient's claim that the physician has breached that duty is based on negligence, which is part of the law of torts. Under common law, damages for breach of contract are limited to losses that were within the contemplation of the parties at the time of contracting, whereas damages for negligence include all losses that were proximately caused by the tortious act. In China, however, Article 112 of the GPCL apparently authorizes recovery of consequential damages for breach of contract. GPCL, supra note 47, at Art. 112.Google Scholar

Article 131 of the GPCL provides that, if the victim also bears fault in causing the harm, the tortfeasor's liability may be decreased. With regard to medical accidents, Article 49 of the 2002 regulation provides that the amount of compensation shall be based in part on the level of responsibility (ze ren) of the negligent conduct in causing harm to the patient. According to Shi, Min, et al., the level of ze ren refers to the proportion of the medical harm that can be attributed to the negligent medical conduct. Shi, Zhao, Wu, , eds., supra note 101, at 77–78. In addition, according to Article 36 of the Temporary Regulation of Medical Accident Technical Authentication, there are four levels of responsibility: Complete responsibility, major responsibility, minor responsibility and mild responsibility. The definitions of responsibility in the temporary regulation on technical authentication are as follow: Complete responsibility (medical harm was caused completely by medical negligent behavior), major responsibility (medical harm was caused mainly by medical negligent behavior), minor responsibility (medical harm was caused mainly by factors other than medical negligent behavior), mild responsibility (almost all medical harm was caused by factors other than medical negligent behavior). Thus, the proportion of liability is determined by the proportion of medical harm that was caused by negligent medical practice. If a patient bears fault which contributed to the medical injury, then health care facilities and workers may not bear complete responsibility for the injury.Google Scholar

See also Chen, , supra note 7, at 147 and 166 (questioning whether 4 years in prison is really an administrative penalty).Google Scholar

Specifically, article 335 of the Criminal Law provides that “[a]ny medical worker who, grossly neglecting his duty, causes death or severe harm to the health of the person seeking medical service shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.” Criminal Law of the P.R.C., Art. 335, (Law Press China, 2002).Google Scholar

Wang, Y., “The Sameness and Difference between the Regulation of Handling Medical Accidents and the Regulation on Dealing with Medical Incidents,” (yi liao shi gu chu li tiao li yu yi liao shi gu chu li ban fa de zhu yao yi tong dian) Chinese Hospitals (zhong guo yi yuan) 6, no. 6 (2002): 10–17, at 13. Of course, how these articles work needs empirical evidence. If these reports are accessible to the public, it is unclear whether Chinese doctors or health care facilities will report their medical errors more honestly than their U.S. counterparts.Google Scholar

See The notice regarding good preparation for practicing the Regulation of Handling Medical Accidents, which was delivered jointly by Ministry of Health and National Bureau of Managing Chinese Medicine and Drugs (wei sheng bu guo jia zhong yi yao guan li ju guan yu zuo hao shi shi yi liao shi gu chu li tiao li yo guan gong zuo de tong zhi), available at <http://news.xinhuanet.com/zhengfu/2002–08/07/content_513996.htm> (last visited on June 7, 2005).+(last+visited+on+June+7,+2005).>Google Scholar

See generally Abraham, K. S. Weiler, P. C., “Enterprise Medical Liability and the Evolution of the American Health Care System,” Harvard Law Review 108 (1994): 381–436, at 393 (“hospitals under enterprise liability would be the exclusive bearers of medical liability for all malpractice claims brought by hospitalized patients …”). But see Sage, W. M. et al., “Enterprise Liability for Medical Malpractice and Health Care Quality Improvement,” American Journal of Law & Medicine 20 (1994): 1–28 (arguing that enterprise liability in the U.S. should be imposed on health plans rather than hospitals).CrossRefGoogle Scholar

See, e.g., Abraham, Weiler, , supra note 113, at 401–414.Google Scholar

See id., at 411 (“Even more importantly, such a shift to EML would target the component of the health care system that possesses the greatest capacity for continuously improving the quality of care”) See also Sage, et al., supra note 113, at 11 (“Hospitals and other advanced facilities are usually well equipped to monitor staff physicians and to create environments that improve the total quality of care.”Google Scholar

Pei, et al., supra note 36, at 1722–1723; Hsiao, , supra note 28, at 1051. In the U.S., some proponents of enterprise liability rely on the existing authority of hospitals to limit or terminate the clinical privileges of physicians who fail to provide quality medical care. See, e.g., Abraham, Weiler, , supra note 113, at 414.Google Scholar

Liu, Chang, , supra note 51, at 60–1. Liu, C., “Comment on the Defects of Medical Accident Crime Legislation and Judicial Interpretation,” (lun yi liao shi gu zui li fa ji si fa jie shi de que xian) Journal of Law & Medicine (fa lu yu yi xue za zhi) 9, no. 3 (2002): 154–6.Google Scholar

Shi, Zhao, Wu, eds., supra note 101, at 76. Thus, administrative mediation is not a basis for judicial enforcement, but merely increases the likelihood of success in subsequent litigation.Google Scholar

Wang, , supra note 111, at 14–15.Google Scholar

See Jiang, , supra note 2, at 53; Huang, Sun, , supra note 100.Google Scholar

At Hai Ding District of Beijing City, within seven months after the 2002 Regulation came into force, only one out of 40 cases was found by technical authentication groups to be a liability accident. However, in Shanghai City, 80% of more than 300 non-liability conclusions of technical authentications were later challenged by conclusions of forensic medical examinations. This may explain why most plaintiffs in Hai Ding District of Beijing City preferred forensic medical examinations for their cases. See Ma, J., “Comment on the finalization of compensating for harm in medical disputes-challenging Article 49 of the Regulation on Handling Medical Accidents,” (lun yi huan jiu fen sun hai pei chang de que ding- dui yi liao shi gu chu li tiao li di 49 tiao de zhi yi) Journal of Law & Medicine (fa lu yu yi xue za zhi) 11, no. 1 (2004): 1–5, at 4.Google Scholar

Lin, H., “Preliminary Exploration of the Newly Adopted Regulation on Handling Medical Accidents,” (xin ban bu de yi liao shi gu chu li tiao li chu tan) Chinese Journal of Forensic Science (zhong guo si fa jian ding) 4 (2002): 39–42, at 39.Google Scholar

See Fong, W., “Breakthrough and Restriction: Concise Comment on the New Regulation on Handling Medical Accidents,” (tu po yu ju xian:jian ping xin de yi liao shi gu chu li tiao li), available at <http://article.chinalawinfo.com/article/user/article_display.asp?ArticleID=21958>, last visited on June 7, 2005).,+last+visited+on+June+7,+2005).>Google Scholar

Zhu, Y., “Chinese Medical Association States that Technical Authentication Fee Cannot Cover its Cost,” (zhong hua yi xue hui biao shi yi liao shi gu jian ding fei yong shou zhi bu di), available at <http://news.xinhuanet.com/newscenter/2003–09/05/content_1065752.htm> (last visited on June 7, 2005).+(last+visited+on+June+7,+2005).>Google Scholar

These figures are available at <http://www.cpirc.org.cn/tjsj/tjsj_gb_detail.asp?id=2075> (last visited on June 7, 2005).+(last+visited+on+June+7,+2005).>Google Scholar

According to an official of the Chinese Medical Association, even 8,500 RMB is below the actual costs of technical authentications. See Zhu, , supra note 124.Google Scholar

Wang, , supra note 111, at 16. Song, Y. Xiang, H. Luo, W., “A Try to Comment on Compensation System in the Regulation on Handling Medical Accidents,” (shi lun tiao li zhong de yi liao shi gu pei chang zhi du) Chinese Rural Health Service Administration (zhong guo nong cun shi ye guan li) 23, no. 9 (2003): 45–47, at 46. Shi, Zhao, Wu, eds., supra note 101, at 78.Google Scholar

According to Supreme People's Court Law (fa) No. 20 (2003) notice, the 2002 Regulation shall pre-empt GPCL as applied to the handling of all medical accidents. However, even though some scholars support this restricted scheme out of cost concerns, they still argue for equitable adjustment of the compensation according to the conditions of patients and their dependents. See Zhang, J., “Preliminary Analysis of Several Problems with the Regulation on Handling Medical Accidents,” (yi laio shi gu chu li tiao li de ji ge wen ti qian xi), Journal of Law & Medicine (fa lu yu yi xue za zhi) 10, no. 1 (2003): 9–13, at 12; Yang, L., “New Development and Adjudication Policy in the Regulation on Handling Medical Accidents (II),” (yi liao shi gu chu li tiao li de xin fin zhan ji sheng pan dui ce [er]), available at <http://www.civillaw.com.cn/weizhang/default.asp?id=7823> (last visited on June 7, 2005).Google Scholar

See Supreme People's Court's notice, Law 20 (2003), regarding the application of the 2002 regulation in adjudicating civil cases of medical disputes (zui gao ren min fa yuan guan yu can zhao yi liao shi gu chu li tiao li sheng li yi liao jiu fen min shi an jian tong zhi, fa (2003) 20 hao), available at <http://www.jincao.com/fa/law10.s33.htm> (last visited on June 7, 2005). (last visited on June 7, 2005).' href=https://scholar.google.com/scholar?q=129See+Supreme+People's+Court's+notice,+Law+20+(2003),+regarding+the+application+of+the+2002+regulation+in+adjudicating+civil+cases+of+medical+disputes+(zui+gao+ren+min+fa+yuan+guan+yu+can+zhao+yi+liao+shi+gu+chu+li+tiao+li+sheng+li+yi+liao+jiu+fen+min+shi+an+jian+tong+zhi,+fa+(2003)+20+hao),+available+at++(last+visited+on+June+7,+2005).>Google Scholar

See Supreme People's Court's Certain Rules Regarding Evidence in Civil Procedure, Law Interpretation No. 33 (2001) (zui gao ren min fa yuan guan yu min shi su song zheng ju de ruo gan gui ding, fa shi [2001] 33 hao). Also see the explanation by First Civil Branch of the SPC on the draft of Law Interpretation No. 33 (2001) (zui gao ren min fa yuan min shi sheng pan di yi ting guan yu min shi su song zheng ju de ruo gan gui ding de qi cao suo ming), available at <http://mdshnx.nease.net/law/zj/zj-ms-qcsm.htm> (last visited on June 7, 2005). (last visited on June 7, 2005).' href=https://scholar.google.com/scholar?q=130See+Supreme+People's+Court's+Certain+Rules+Regarding+Evidence+in+Civil+Procedure,+Law+Interpretation+No.+33+(2001)+(zui+gao+ren+min+fa+yuan+guan+yu+min+shi+su+song+zheng+ju+de+ruo+gan+gui+ding,+fa+shi+[2001]+33+hao).+Also+see+the+explanation+by+First+Civil+Branch+of+the+SPC+on+the+draft+of+Law+Interpretation+No.+33+(2001)+(zui+gao+ren+min+fa+yuan+min+shi+sheng+pan+di+yi+ting+guan+yu+min+shi+su+song+zheng+ju+de+ruo+gan+gui+ding+de+qi+cao+suo+ming),+available+at++(last+visited+on+June+7,+2005).>Google Scholar

Some confusion resulted when the SPC issued a separate document entitled Law Interpretation (fa shi) No. 20, (2003) which is different from the Law No. 20 (2003) Notice discussed above. In its 2003 Law Interpretation, the SPC adopted a position with regard to the way in which courts should apply laws to determine compensation for personal injury. The SPC's Interpretation Regarding Questions in Applying Law in Adjudicating Personal Injury Cases (zui gao ren min fa yuan guan yu sheng li ren sheng sun hai pei chang an jian shi yong fa lu ruo gan wen ti de jie shi), Law Interpretation No. 20 (2003). It is important to note that Law Interpretation No. 20 (2003) is different from Law No. 20 (2003). The 2003 Law Interpretation by the SPC aroused suspicion about whether it preempts the 2002 regulation on medical accidents. On the basis of that 2003 Law Interpretation from the SPC, patients and their families might be awarded higher amounts of damages than they could receive under the 2002 regulation. Eventually, this issue was clarified by means of a newsletter on the SPC's website, which re-emphasized the message of the Law No. 20 (2003) Notice. Basically, this newsletter is a collection of answers given to reporters' questions by the chief official of the First Civil Court of the SPC (zui gao ren min fa yuan min yi ting fu ze ren jiu sheng li yi liao jiu fen an jian de fa lu shi yong wen ti da ji zhe wen), available at <http://www.court.gov.cn/news/bulletin/activity/200404120015.htm> (last visited on June 7, 2005). The newsletter on the SPC's website basically directs the courts to apply the Law No. 20 (2003) Notice in dealing with cases of medical accidents, instead of applying the 2003 Law Interpretation which addresses interpretation and implementation of laws in cases of personal injury. Thus, for cases of medical accidents, the 2002 regulation shall be applied; for other cases the 2003 Law Interpretation shall be applied. (last visited on June 7, 2005). The newsletter on the SPC's website basically directs the courts to apply the Law No. 20 (2003) Notice in dealing with cases of medical accidents, instead of applying the 2003 Law Interpretation which addresses interpretation and implementation of laws in cases of personal injury. Thus, for cases of medical accidents, the 2002 regulation shall be applied; for other cases the 2003 Law Interpretation shall be applied.' href=https://scholar.google.com/scholar?q=131Some+confusion+resulted+when+the+SPC+issued+a+separate+document+entitled+Law+Interpretation+(fa+shi)+No.+20,+(2003)+which+is+different+from+the+Law+No.+20+(2003)+Notice+discussed+above.+In+its+2003+Law+Interpretation,+the+SPC+adopted+a+position+with+regard+to+the+way+in+which+courts+should+apply+laws+to+determine+compensation+for+personal+injury.+The+SPC's+Interpretation+Regarding+Questions+in+Applying+Law+in+Adjudicating+Personal+Injury+Cases+(zui+gao+ren+min+fa+yuan+guan+yu+sheng+li+ren+sheng+sun+hai+pei+chang+an+jian+shi+yong+fa+lu+ruo+gan+wen+ti+de+jie+shi),+Law+Interpretation+No.+20+(2003).+It+is+important+to+note+that+Law+Interpretation+No.+20+(2003)+is+different+from+Law+No.+20+(2003).+The+2003+Law+Interpretation+by+the+SPC+aroused+suspicion+about+whether+it+preempts+the+2002+regulation+on+medical+accidents.+On+the+basis+of+that+2003+Law+Interpretation+from+the+SPC,+patients+and+their+families+might+be+awarded+higher+amounts+of+damages+than+they+could+receive+under+the+2002+regulation.+Eventually,+this+issue+was+clarified+by+means+of+a+newsletter+on+the+SPC's+website,+which+re-emphasized+the+message+of+the+Law+No.+20+(2003)+Notice.+Basically,+this+newsletter+is+a+collection+of+answers+given+to+reporters'+questions+by+the+chief+official+of+the+First+Civil+Court+of+the+SPC+(zui+gao+ren+min+fa+yuan+min+yi+ting+fu+ze+ren+jiu+sheng+li+yi+liao+jiu+fen+an+jian+de+fa+lu+shi+yong+wen+ti+da+ji+zhe+wen),+available+at++(last+visited+on+June+7,+2005).+The+newsletter+on+the+SPC's+website+basically+directs+the+courts+to+apply+the+Law+No.+20+(2003)+Notice+in+dealing+with+cases+of+medical+accidents,+instead+of+applying+the+2003+Law+Interpretation+which+addresses+interpretation+and+implementation+of+laws+in+cases+of+personal+injury.+Thus,+for+cases+of+medical+accidents,+the+2002+regulation+shall+be+applied;+for+other+cases+the+2003+Law+Interpretation+shall+be+applied.>Google Scholar

Song, , supra note 99, at 17.Google Scholar

See Article 4 of Supreme People's Court Law Announcement No. 15 (1997) that sets forth certain rules regarding the work of legal interpretation (zui gao ren min fa yuan guan yu si fa jie shi de ruo gan gui ding), available at <http://www.court.gov.cn/law-data/explain/main/200304040012.htm> (last visited on June 7, 2005). (last visited on June 7, 2005).' href=https://scholar.google.com/scholar?q=133See+Article+4+of+Supreme+People's+Court+Law+Announcement+No.+15+(1997)+that+sets+forth+certain+rules+regarding+the+work+of+legal+interpretation+(zui+gao+ren+min+fa+yuan+guan+yu+si+fa+jie+shi+de+ruo+gan+gui+ding),+available+at++(last+visited+on+June+7,+2005).>Google Scholar

For example, Article 385 of the Revised Criminal Law stipulates that the act of officials receiving others’ property to benefit others through their duties comprises the crime of bribery; no severe outcome is needed. However, in Article 53 and 57 of the 2002 regulation, severe outcomes are stipulated as the conditions that comprise the crimes. In addition, Article 53 and 57 of the 2002 Regulation add “receiving interests” as one of the conditions that comprise the crime of bribery. However, this is beyond the projection of “receiving property” in Article 385 of the revised Criminal Law. See Shi, X. Xu, D., “The Conflict between the Regulation on Handling Medical Accident and Criminal Law,” (yi liao shi gu chu li tiao li yu xing fa gui ding de chong tu) People's Procuratorial Monthly (ren min jian cha) 6 (2002): 54–55, at 55. Also see Huang, Sun, , supra note 100; Guo, F. W., supra note 123.Google Scholar

This 2001 law interpretation took effect on April 1, 2002.Google Scholar

Chen, Z., “Several problems regarding the Regulation on Handling Medical Accidents,” (guan yu yi liao shu gu chu li tiao li cun zai de ji ge wen ti) Journal of Law & Medicine (fa lu yu yi xue za zhi) 9, no. 2 (2002): 72–76, at 72–73; Yu, L., “Analysis of Legal Problems in the Regulation on Handling Medical Accidents,” (yi liao shi gu chu li tiao li ruo gan wen ti fen xi) Journal of Law & Medicine (fa lu yu yi xue za zhi) 10, no. 1 (2003): 6–9, at 6; Wei Guo, F., supra note 123.Google Scholar

Further research and analysis are also needed with regard to informed consent and confidentiality of peer review materials, both of which are important issues beyond the scope of the present article.Google Scholar

See Studdert, D. M. et al., “Medical Malpractice,” New Eng. J. of Med. 350, no. 3 (2004): 283–292. See also Hyman, D. A., “Medical Malpractice and the Tort System: What do we know and what (if anything) should we do about it?” Texas Law Review 80, no. 7 (2002):1639–1655.CrossRefGoogle Scholar

Pei, et al., supra note 36, at 1717, 1724.Google Scholar

Mello, M. Brennan, T., “Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform,” Texas Law Review 80 (2002): 1595–1637.Google Scholar

Mohr, , supra note 26, at 1732.Google Scholar

Jost, , supra note 40.Google Scholar

Lim, M. K. et al., “Public Perceptions of Private Health Care in Socialist China,” Health Affairs 23, no. 6 (2004): 222–234, at 231–233.CrossRefGoogle Scholar

As Catherine Struve has written, “juries do better than their critics charge, and specialized courts would generate problems of their own.” Struve, C., “Improving the Medical Malpractice Litigation Process,” Health Affairs 23, no. 4 (2004): 33–41, at 37.CrossRefGoogle Scholar

Liang, B., “The Adverse Event of Unaddressed Medical Error: Identifying and Filling the Holes in the Health-Care and Legal Systems,” Journal of Law, Medicine & Ethics 29 (2001): 346–368, at 357 (footnote omitted).CrossRefGoogle Scholar