Preventing Medical Malpractice and Compensating Victimized Patients in China: a Law and Economics Perspective
PhD student: Mr X. Yu
Promotors: Prof M.G. Faure, Dr N.J. Philipsen
Duration: 1/9/2012 - 31/8/2016
PhD defence: Maastricht, 15/2/2017
Research Background: Nowadays, for Chinas medical institutions, the risk of paying medical compensation is increasing, especially in 2002 when the State Council of China issued the Regulation on the Handling of Medical Accidents (hereinafter called the Regulation) and the Supreme Peoples Court of China passed Some Provisions on Evidence in Civil Procedures(hereinafter called the Provisions). On the one hand, the Regulation increases medical responsibilities that medical institutions or the staff members thereof bear and improves compensation standard. On the other hand, the Provisions provides that the medical institution shall be responsible for producing evidences to prove that there is no causal relationship between the medical act and the harmful consequences or it is not at fault. Therefore, the frequency and sum of medical malpractice claims show fast ascendant trend. On July 1st, 2010, Tort Law of the Peoples Republic of China (hereinafter called the Tort Law) came into effect. The title of Chapter of the Tort Law is Liability for Medical Malpractice, which aims at protecting the legitimate rights and interests of both the medical institutions and patients, clarifying medical liability, preventing and punishing medical malpractice, and promoting the social harmony and stability. Furthermore, compared with the increasing risks of medical claims, the problem of the tension of the physician-patient relationship or medical disputes is more serious. At present, the transformation from pure medical disputes into illegal beat-smash-disturb behavior is nothing new, which disrupts the normal medical order and injures medical personnel. And even in some places, a new occupation which is called hospital trouble maker comes into being. Simply to say, when a medical dispute happens, hospital trouble makers will appear. They help the patients to make trouble in the hospital, with a view to forcing the hospital to pay compensation fee. When the patients receive the compensation money, the hospital trouble makers will obtain the agreed commission. Consequently, medical personnel become lack of sense of security and reluctant to adopt high risk medical treatment technology. More unimaginably, in order to protect themselves, medical staffs of a hospital even work wearing steel helmets every day. -Theoretical Review: Medical malpractice is a topic of continual interest for the legal profession. With increasing moves towards the regulation of patients\' rights in the worldwide context, seeking to uncover the overall impact and success of different combinations of healthcare systems and regulatory regimes can only be a timely exercise. Lawyers in England, the United States and Canada will be familiar with the dominance of tort in dealing with malpractice issues. It remains an exceptional approach to base an action for malpractice on a contract between the practitioner/healthcare provider and the patient, certainly in the context of public care although the picture is more forgiving in private care. Yet the global picture reveals a greater pluralism beyond this common law, tort-centred approach. For most of the twentieth century the choice of a contract action in the German system determined a very different set of rules for any action based on a vicarious liability along with limiting the heads of damage available to the injured party. In Italy the shift to a contractual relationship has relied on copious theoretical discussion over how best this could be achieved. The increasingly serious doctor-patient disputes and the risk of medical malpractice greatly affect the normal medical order and threaten the safety of doctors. On the other hand, doctors risk aversion and \"defensive medicine\" also eventually damage the interests of patients. Therefore, we need an effective risk transfer tool to protect the legitimate rights and interests of the hospital, physicians and patients. Medical liability insurance is adapted to the needs of a better systematical arrangement. Some countries established medical liability insurance system nearly a hundred years ago, but China is still in the initial stage. In 1999, some areas such as Yunnan Province, Shenzhen City, and Beijing City piloted medical liability insurance. In the next year, a commercial insurance company launched the first nationwide medical liability insurance policy. At present, the development of Chinas medical liability insurance can be divided into two patterns, namely the government-leading mode, as well as commercial medical liability insuranceindependent development mode. However, because of the policy and market environment, the commercial medical liability insurance is faced with an awkward situationboth supply and demand are low, and the government-leading medical liability insurance is also confronting many obstacles and difficulties problems. In 2007, Ministry of Health, State Administration of traditional Chinese Medicine, Insurance Regulatory Commission jointly promulgated the Notice about Promoting the Medical Liability Insurance, which provides a good policy environment for the development of Chinas medical liability insurance. In 2011, some deputies to the Peoples Congress of China proposed that China should promote the establishment of mandatory medical liability insurance system, for the purpose of abating medical tangle. The present medical liability insurance system has three major deficiencies. Firstly, the extent of compensation of medical liability insurance is confined to medical malpractice. However, according to the so-called equitable liability rule, where neither the patient nor the doctor is at fault for the occurrence of a damage, both of them may share the damage based on the actual situations (Article 24 of the Tort Law). Obviously, medical liability insurance cannot cover this kind of indemnity. Secondly, the computation of medical liability insurance premium is not quite scientific. According to the present regulations of insurance companies, medical institutions procure insurance in terms of number of beds, doctors and operations, which gives rise to the phenomenon that most insurance companies delay the payment, restrict the compensation extent and hesitate to perform the insurance contract. Thirdly, the income of medical institutions and staff members thereof is very low, which limits the increase of premium. For the time being, most hospitals in China have very limited government financial input and the income of hospitals can only make them manage with an effort. Many small and medium-sized hospitals are facing larger survival issues. When medical damage occurs, it is usually not difficult to find that the income is not proportional to the compensation fee. At the moment, although the development of Chinas medical liability insurance is favored by the beneficial policy environment, it does not mean that many problems and difficulties can be smoothly done or easily solved. In fact, these problems can be partly ascribed to the short of in-depth research on medical system, law, market, rate of premium and risk control and so on. For instance, given China has set up the mandatory motor vehicle insurance system in 2007, the transition mode of Chinas medical liability insurance should be mandatory or introductory? Should it be equitable that the local government-leading medical liability mandatory insurance be mainly applied to large and medium-sized hospitals? Should medical liability insurance be able to solve or alleviate the problem of medical disputes? Should it be possible and practical to design medical liability insurance policy for accidents instead of claims? When medical disputes happen, should it be better for insurers to arrange a settlement with other parties or appear in court? Furthermore, many other countries have established their Medical Malpractice Insurance or Professional Liability Insurance system, which function effectively and successively. What are the medical tort laws or liability laws like in these countries? How do they handle the issue of medical liability insurance? What kind of lessons can people draw from them? The author wants to work them out. -The Goals Of The Research: (1) To examine and disclose foundations of medical liability and medical insurance; (2) To find or design an optimal medical liability insurance system for China, especially with the hope of promoting legislation or administrative regulation on medical liability insurance; (3) The comparative nature of this research may be conducive to researchers of other countries who are interested in Chinese legal characteristics and medical reform. -The Experimental Methods: (1) Comparative analysis of law; (2) Economic analysis of law.