The evolving legal mechanism for medical malpractice dispute resolution in China

Lin, Nuannuan and Hu, Weijun 2018, The evolving legal mechanism for medical malpractice dispute resolution in China, Columbia Journal of Asian Law, vol. 32, no. 1.

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Title The evolving legal mechanism for medical malpractice dispute resolution in China
Author(s) Lin, NuannuanORCID iD for Lin, Nuannuan orcid.org/0000-0002-8792-1106
Hu, Weijun
Journal name Columbia Journal of Asian Law
Volume number 32
Issue number 1
Total pages 58
Publisher Columbia University * School of Law
Place of publication New York, N.Y.
Publication date 2018-12-01
ISSN 1094-8449
Keyword(s) Medical Malpractice
Dispute Resolution
Administrative-led Dispute Resolution System
Law and Society
Chinese Legal Reform
Summary This article investigates the evolution of the Chinese legal mechanism for medical malpractice dispute resolution (MMDR) from the establishment of the first rules for MMDR in 1955 to the promulgation of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws for the Trial of Medical Malpractice Cases in 2017. Using historical documents and chronicled sources, it reveals the politicization of adverse events in the 1950s-70s and explores how the unique historical and political context created a different philosophical and practical foundation for the Chinese mechanism for MMDR. In contrast to the common law position that treats medical malpractice as a breach of the duty of care to patients, the Chinesemechanism treated medical malpractice as a breach of duties which a health care professional owed to the health administration system. In contrast to the common law approach that allocates medical malpractice cases to private law, the Chinese approach allocated medical malpractice cases to an administrative-led dispute resolution system. That is why, the article explains, the Chinese MMDR mechanism focused on disciplinary and regulatory functions rather than the function of redressing damages in the early stages of its development.This early philosophical and practical foundation was altered by the Chinese economic and healthsystem reforms initiated in 1978 and 1985. As the reforms transformed patients into consumers ofhealth services, pecuniary compensation became an unavoidable issue for the MMDR mechanism.The article then tracks changes in the laws and regulations governing medical malpractice disputesduring 1987-2017 and takes judicial practice into account when explaining how the MMDRmechanism shifts its legitimacy from one based on health administrative rules to one based on theChinese civil laws and shifts its function from deterring medical malpractice to compensating formedical injuries. The results of this research shed light on the social dynamics of legal reform,suggesting that the evolution of the Chinese legal mechanism may be understood as a dynamicproduct of an ongoing interaction between law and society
Language eng
Field of Research 180106 Comparative Law
1801 Law
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2018, The Author
Persistent URL http://hdl.handle.net/10536/DRO/DU:30114500

Document type: Journal Article
Collection: Law
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