Legal and Forensic Medicine || Current Status and Legal Treatments of Medical Disputes in China

Current Status and Legal Treatments ofMedical Disputes in China 83Zhao Min and Tao Peng

Abstract

The number of medical disputes in China as well as the claims involved in

disputes has increased significantly, which make it more difficult to resolve the

medical disputes. Medical disputes in China may derive administrative liability,

civil liability, and criminal liability, but in practice, patients tend to pursue

mainly the civil liability of medical service providers. China began to explore

the resolution of medical disputes via the third-party mediation since 2004 and

established the non-litigation regime of mediation on medical disputes by

relying on the people’s mediation system, which has contributed positively to

resolve medical disputes.

Introduction

Medical disputes are increasing in China in terms of number of cases and amount of

claims. This chapter describes the current status of medical disputes in China and

provides an outline of potential legal liabilities arising from the medical disputes.

This chapter also provides an overview of how China handles the medical disputes,

with a particular focus on third-party mediation.

Z. Min (*)

Law Department, Hubei University of Chinese Medicine, Wuhan, People’s Republic of China

e-mail: [email protected]

T. Peng

DLA Piper Hong Kong, Hong Kong, People’s Republic of China

e-mail: [email protected]

R.G. Beran (ed.), Legal and Forensic Medicine,DOI 10.1007/978-3-642-32338-6_76, # Springer-Verlag Berlin Heidelberg 2013

1445

mailto:[email protected]

mailto:[email protected]

Current Status of Medical Disputes in China

Increasing Number of Medical Disputes

Statistics of certain medical institutions indicate that the medical disputes in China

continuously increase since 2000, even though there are no available nationwide

statistics. Health Daily reported on July 6, 2004, that compared with September

2002, the incidence rate of medical disputes increased by 17.9 % among China’s

third-grade hospitals, by 34.7 % among second-grade hospitals, by 12.9 % among

first-grade hospitals, and by 40 % among unrated hospitals. According to the report

conducted by the Chinese Medical Doctor Association (CMDA) over 114 hospitals

in 2004, on average, each hospital had about 66 cases of medical dispute between

2000 and 2003 [1]. According to the research report of the Hunan Province

Committee of Chinese Peasants and Workers Democratic Party concerning the

doctor and patient relationship in Changsha, the statistics over four provincial level

hospitals including Xiangya Hospital and six municipal level hospitals including

the First Hospital of Changsha indicate that there were a total of 184 cases of

medical disputes from September 1998 to August 1999 and 243 cases from

September 1999 to August 2000, increased by 87 % in a year; there were

297 cases from September 2000 to August 2001, increased by 22 % over the

prior year [2]. In 2006, the number of cases initiated for medical malpractice expert

assessment in connection with medical disputes in Zhejiang Province increased by

19.5 % over 2005, and the number of medical malpractice increased by 29.8 % over

2005 [3]. According to the statistics of Shenzhen Medical Science Association in

2006, the cases for medical malpractice expert assessment in connection with

medical disputes increased continuously for 2 years by more than 70 %, with the

average of 7–8 cases for normal hospital and dozens for large hospitals [4].

According to the news issued by Beijing Morning onMay 23, 2007, as of November

30, 2006, Beijing has accepted 1,233 cases of medical dispute, 1,067 of which were

settled via mediation and 166 were litigated. The total cases accepted were 400

more than the whole year of 2005 when the total accepted cases were 806, 737 cases

of which were settled and 69 were litigated.

The above statistics indicate that the absolute amount of medical dispute cases in

various parts of China were increasing and at the fast pace. However, the incidence

of medical disputes per ten thousand examined patients did not increase signifi-

cantly; for example, it increased by 9.57 % from 2003 to 2004, but decreased by

11.65 % from 2004 to 2005. As to the incidence of medical disputes per 1,000

hospitalized patients that have been checked out, it increased by 5.63 % from 2003

to 2004, but decreased by 19.11 % from 2004 to 2005. (Wei, Junli. Analysis and

Research on Current Status of Doctor Patient Relationship in China and Elements

of Implication. Thesis for master degree from Tongji Medical College of Huazhong

University of Science and Technology. The data was from the Questionnaire

Investigation of Medical Disputes and Incidents in Comprehensive Hospitals by

the Division of Complains and Appeals of the Ministry of Public Health in 2005.

This investigation used the method of definite proportion and stratification

1446 Z. Min and T. Peng

sampling and was implemented in sixteen provinces and municipalities including

Beijing, Shanghai, Liaoning, Shandong, Zhejiang, Guangdong, Hebei, Jilin, Henan,

Jiangxi, Hunan, Inter Mongolia, Sichuan, Yunnan, Shaanxi, and Gansu. There were

150 questionnaires returned, including from 74 third-grade comprehensive hospi-

tals and from 76 comprehensive hospitals with other grades. Third-grade compre-

hensive hospitals accounted to 49.3 % of the total comprehensive hospitals

investigated.) (See Table 83.1).

Larger Amount of Damages Claimed in Medical Disputes

Health Daily reported on July 6, 2004, that the amounts of damages claimed in

medical disputes turned to be huge, and it was common to see the claims in the

amount of Reminbi tens of thousands, hundreds of thousands, and even millions.

Among third-grade hospitals, nearly 75 % of the disputes involved claims for

damages within RMB 100,000 (approximately US $12,000 at the exchange rate

in 2004), 20 % in involved claims for damages from RMB 100,000 to 500,000

(US $12,000 to 58,900), and 5 % from RMB 500,000 to 1,000,000 (US $58,900 to

117,700). According to the 2004 Statistics Report on National Economy and Social

Development by the National Bureau of Statistics of China, the per capita net

income in rural areas was RMB 1,936, and the per capital disposable income in

urban areas was RMB 9,422. Compared with the revenue, any claim for damages in

medical disputes that was above RMB 100,000 should be considered huge.

According to the investigation of the CMDA in 2004, the compensation amounts

for medical disputes were huge between 2000 and 2003. On average, the compen-

sation amount was RMB 108,310 (US $12,800), and the maximum compensation in

one case was RMB 920,000 (US $108,300) (same as note 1).

Table 83.1 Number of incidence of medical disputes in 2003–2005

Item

Year

2003 2004 Increase (%) 2005 Increase (%)

Annual cases of medical

dispute complains

6,324 7,716 22.01 8,474 9.82

Annual number of examined

patients

67,377,930 74,957,790 11.3 93,985,095 25.4

Annual number of

hospitalized patients that have

checked out

2,975,325 3,423,270 15.1 4,667,520 36.4

Incidence of medical disputes

per ten thousand examined

patients

0.94 1.03 9.57 0.91 �11.65

Incidence of medical disputes

per 1,000 hospitalized

patients that have checked out

2.13 2.25 5.63 1.82 �19.11

83 Current Status and Legal Treatments of Medical Disputes in China 1447

Increasing Number of Litigated Medical Disputes

The cases accepted by courts in various areas of China were increased significantly

from 2000, with relatively more cases in economy-developed areas and in areas

with more hospitals. In Beijing, from 2001 to the third quarter of 2005, the courts in

Beijing accepted for the first trial the total of 2,929 civil cases involving damages in

medical disputes. Specifically, there were 340 cases accepted in 2001, 528 in 2002,

631 in 2003, 678 in 2004, and 752 in 2005 [5]. The Wuhou District Court of

Chengdu accepted on average no more than two cases on medical disputes prior to

1997 and accepted 13 cases in 2000, 16 in 2001, 24 in 2002, and 26 in 2003. The

cases accepted in 2003 were 13 times the cases accepted in 1997 [6]. According to

the statistics of the Hubei High Court, there were 597 cases accepted by courts in

Hubei Province involving damages in medical disputes in 2003 and 702 cases in

2004 (News report of Chutian Municipal Daily. March 15, 2005).

Difficulty in Handling Disputes, and Some Patients UnreasonablyDefend Rights

Accompanied with the increase of medical disputes, some patients unreasonably

defended their rights, for example, attacking hospitals and scolding and assaulting

doctors and nurses, which made it more difficult in settling medical disputes.

According to CMDA’s Analysis Report on Investigation on “Yi Nao” in Some

Provinces and Municipals of China, released in October 2006, among the investi-

gated 350 hospitals, in 2004, 2005, and 2006, respectively, the annual incidence

rate of “Yi Nao” was 89.58 %, 93.75 %, and 97.92 %, and on average, each hospital

had encountered “Yi Nao” cases 10.48, 15.06, and 15.31. (Wang, Shujun. Investi-

gation of Chinese Medical Doctor Association Shows that “Yi Nao” Turns Worse

over the Past Three Years. People’s Daily. Jan 20,2007:11 CMDA and some of its

branches conducted a questionnaire investigation over 350 hospitals in Beijing,

Shandong, Hunan, Gansu, Dalian, Shenyang, Wuhan, etc., concerning the issue of

“Yi Nao” and produced the Analysis Report on Investigation on “Yi Nao” in Some

Provinces and Municipals of China.)

More Medical Disputes Involving Departments of Surgical, Medical,and Gynecology and Obstetrics

According to the analysis on the data from the Questionnaire Investigation of

Medical Disputes and Incidents in Comprehensive Hospitals by the Division of

Complains and Appeals of the Ministry of Public Health in 2005, the surgical room

topped among various departments where the medical disputes have occurred. The

surgical department was the most frequently complained department, accounting

for 30 % of total complains among the investigated 150 hospitals, and the medical

department ranked No. 2 by 17.87 %. The medical department and the surgical

department (including the surgical rooms such as the general surgery and


gynecology and obstetrics) within the third-grade hospitals had the higher rates of

being complained than the other hospitals, but the emergency room, anesthesiology

department, other clinical rooms, radiation and auxiliary diagnosis departments,

and other departments within the third-grade hospitals had a lower rate of being

complained than other hospitals (P < 0.05). (See Table 83.2). (Wei, Junli. Analysis

and Research on Current Status of Doctor Patient Relationship in China and

Elements of Implication. Thesis for master degree from Tongji Medical College

of Huazhong University of Science and Technology).

Legal Liability on Medical Disputes in China

The cases of medical disputes in China may give rise to civil, criminal, and

administrative liabilities. There are three pieces of legislation dealing with the

administrative liability, civil liability, and criminal liability arising from the med-

ical disputes, respectively. Regulations on Handling Medical Disputes (hereinafter

“Regulations”) as the administrative regulations become the main legal basis for

pursuing the administrative liability. The PRC Tort Law has a separate chapter on

medical damage liability and becomes the main legal basis for pursuing the civil

liability out of the medical damages. The PRC Criminal Law provides for the crime

of medical malpractice, under which medical service providers may be sentenced to

prison for being seriously irresponsible and having caused the death or serious

injury to the health of patients.

Table 83.2 Complaints per department and status of hospital

Departments and

rooms Complains

Composition

%

Cases and composition per grade of hospitals

Third

grade

Composition

%

Other

hospitals

Composition

%

Medicaldepartmenta

8.81 17.87 12.53 20.03 5.19 14.26

Surgicaldepartmenta

14.79 30 21.66 34.63 8.11 22.26

Emergency rooma 4.16 8.44 4.69 7.5 3.63 9.97

Anesthesiologydepartmenta

1.16 2.35 1.33 2.13 1.01 2.76

Other clinicalroomsa

3.62 7.34 4.31 6.89 2.96 8.12

Pharmacydepartment

1.44 2.92 1.12 1.79 1.75 4.82

Radiation andauxiliary diagnosisdepartmentsa

2.84 5.76 3.33 5.32 2.37 6.50

Otherdepartments

3.54 7.18 3.59 5.74 3.48 9.57

aIndicates that the differences between the third-grade hospitals and other hospitals are meaningful

for statistics purposes


Administratively Liability

According to the PRC Law on Practicing Medical Doctors and the Administrative

Regulations on Medical Institutions, the public health authority in China has the

power to grant, revoke, and suspend the practicing licenses of medical doctors and

other medical practitioners and medical institutions. When a medical doctor or

a medical institution has committed certain acts, the local public health authority

may, according to the seriousness of the circumstances, impose administrative

sanctions and disciplinary sanctions, suspend, or cancel the practicing licenses.

The various violations of the medical doctors and medical institutions may include

(1) causing medical malpractice; (2) failure to truthfully disclose to patients the

illness, medical measures, and medical risks; (3) refusal to provide to patients

services of copying or duplicating medical records; (4) failure to follow rules in

writing or maintaining medical records properly; (5) failure to report significant

medical negligent acts within prescribed time periods; (6) failure to follow rules in

carrying out postmortem examination and maintain or dispose of bodies; (7) and

altering, forging, hiding, or destroying medical records (See Articles 56 and 58 of

Regulations on Handling Medical Disputes).

Medical malpractice is defined as an accident in which a medical institution and

its medical workers violated the public health laws, administrative regulations,

ministerial rules, or standards and customs on medical diagnosis, treatment and

nursing, and negligently caused personal injury to patients (See Article 2 of

Regulations on Handling Medical Disputes).

There are no particular statistics on how many medical doctors and medical

institutions have been subject to administrative liability each year. However, it is

clear that so long as it constitutes medical malpractice, there should have been

administrative liability pursued after the medical institution and medical doctors.

In China, the bearing of civil liability to medical damages and the bearing of

administrative liability to medical malpractice are not consistent. Therefore,

many medical institutions prefer to pay financial compensation by bearing the

civil liability to medical damages, but not willing to have the case be characterized

as medical malpractice.

Criminal Liability

Article 335 of the PRC Criminal Law provides for the crime of medical malprac-

tice, that is, if because a medical worker is seriously irresponsible, causing a patient

to be dead or suffer serious personal injury, the medical worker shall be sentences

into prison for up to 3 years or criminal detention. Therefore, when a medical doctor

or medical worker was seriously irresponsible, there were consequences of death or

serious injury to a patient, and a causation is established between the medical

doctor’s negligence and the death or injury of the patient; the medical doctor may

be found guilty of the crime of medical malpractice and shall bear the criminal

liability. In China, the number of medical malpractice cases charged for criminal


liability is continuously decreasing (According to the news report of ChutianMunicipal Daily, March 15, in the 1980s, there were only about 10 cases of medical

malpractice each year that were determined by the criminal chamber of Hubei

provincial court. The materials from the Hubei People’s High Court indicate that

there was only one case of medical malpractice in each of 2003 and 2004 that was

concluded by the courts in Hubei Province). A main reason may be that many of the

medical malpractice victims and their relatives wish to obtain more economic

compensation after the accidents but lack the motivation to pursue the criminal

liability of medical doctors and hence have not actively reported the cases for

criminal charges.

The PRC Criminal Law also provides for the crime of bribery by non-state

employees. If a doctor took advantage of his or her job and asked for the property or

illegally accepted the property from other parties, when the amount is relatively

large, the doctor may be sentenced to prison for up to 5 years or criminal detention;

when the amount is significantly large, it may be sentenced to prison for more than

5 years plus confiscation of property (See Article 163 of the PRC Criminal Law,

Sixth Amendment to the PRC Criminal Law, and Article 4 on Opinion on Relevant

Issues on Application of Laws in Handling Commercial Bribery Criminal Cases).

The PRC Criminal Law also provided for the crime of selling or illegally providing

personal information of citizens. If a medical institution or its employees, in

violation of the state rules, sell or illegally provide to other parties the personal

information of citizens that were obtained during the process of fulfilling respon-

sibility or providing services, when the circumstances are serious, they may be

sentenced to prison for up to 3 years or criminal detention and may be separately

or conjunctionally subject to criminal fine. If stealing or using other methods to

illegally obtain the above information, when circumstances are serious, the same

penalty as the above will be applicable, and if the subject is an entity, the criminal

fine shall be applicable to the entity and the sentence to prison as noted above

shall be applicable to the in-charge person that is directly responsible and

other responsible persons (See Article 7 of Seventh Amendment to the PRC

Criminal Law).

Civil Liability

In China, the major form of liability out of the medical disputes is the civil liability,

which may be determined based on the tort law, contract law, or the overlap of

them.

1. The civil liability on medical damages is in the nature of the overlap of the

contract breach and the tort

The civil liability to medical damages is the overlap of contract breach and

tort and is the overlap of claims based on contract and claims based on tort. The

view of overlap occupies the dominant position, and the parties may freely

choose the basis to exercise the claims (See Article 122 of the PRC Contract

Law). In practice, most victims choose to sue the medical institutions for tort


liability based on the damages negligently caused by medical institutions

because the choice of tort liability in China is more favorable to victims,

which could cover the compensation of mental distress for better protection of

the benefits of victims.

2. Subject and scope of compensation for medical damages

In China, according to different reasons that derive the damages, the tort liability

for medical damages may be classified into medical technology tort liability,

medical ethics tort liability, and medical product liability. The subject that bears

the liability of medical damages is the medical institution. Medical doctors as

employees of medical institutions do not bear the liability to compensate.

But a solo medical practitioner as the legal representative to the clinic must

bear the liability to medical damages (See Articles 42 and 45 on the Supreme

People’s Court’s Opinion on Relevant Issues in Application of the PRC Civil

Proceeding Law).

The items that can be compensated for medical damages include reasonable

expenses incurred for treatment and recovery such as medical treatment

expenses, nursing expenses, transportation expenses, compensation for lost

working time, expenses for disability aids, compensation for disability, funeral

expenses, compensation for death, and compensation for mental distress

(See Articles 16 and 22 of the PRC Tort Law).

3. The principle of culpability for civil liability to medical damages is based on the

fault, supplemented with presumed fault and no fault

The principle of culpability for civil liability to medical damages refers to the

general principle in determining the liability of medical institutions to medical

damages, that is, when the fact of personal injury to the patient has occurred, the

principle that should be followed in determining whether the medical institution

shall bear any liability of compensation to the damages caused by its medical

acts. Pursuant to Chapter 7 and General Principles of the PRC Tort Law,

multiple principles of culpability are applicable in determining the liability to

medical damages.

1. Fault liability is applicable in general

The principle of fault liability means that the fault is the basis in determining

whether the actor shall bear the liability of tort to the damages caused by the

actor. It is the basic principle of culpability in the tort liability to medical

damages. When a patient is injured during the medical examination, if the

medical institution or its workers have fault, the medical institution shall bear

the liability of compensation (See Article 54 of the PRC Tort Law). There-

fore, when determining the tort liability to the medical damages, the liability

to compensation shall arise only if the medical institution or its workers have

fault. If no fault, there is no liability to compensation. In principle, the

plaintiff shall bear the burden of proof.

2. Presumed fault liability is applicable in special circumstances

Presumed fault liability means that under certain circumstance provided

under the law, a fault on the side of the tortfeasor is presumed out of the

fact of damages themselves, and accordingly, the tortfeasor is determined to


bear the liability of compensation for the damages [7]. A fault will be

presumed to a medical institution in the following circumstances: violating

laws, administrative regulations, ministerial rules, and other relevant stan-

dards on diagnosis and treatment; hiding or refusing to provide medical

records relevant to the dispute; and forging, altering, or destroying medical

records (See Article 58 of the PRC Tort Law). Under the circumstances of

presumed fault, the medical institution may rebut the liability only upon

proving to the contrary.

3. No fault liability is applicable to special cases

No fault liability means that regardless of any fault of the actor, the actor has

to assume the civil liability when the law provides so. The no fault liability

shall be applicable only if the law has expressly provided such. In China, if

the injury to a patient was caused because of the defects on the pharmacy,

disinfectant, or medical device, or the transfusion of unqualified blood, the

patient may ask for compensation from the manufacturer, the blood supply

institution, or the medical institution; after the medical institution has com-

pensated, it has the right to claim for indemnification from the responsible

manufacturer or blood supply institution (See Article 59 of the PRC Tort

Law). This is the only legal provision in China that provides for no fault

liability on the tort liability to medical damages.

4. Special causes for exemption from medical tort liability

Exemption from liability means that an actor will not bear liability for the

damages caused by his or her action based on the causes provided under the

law. Article 60 of the Tort Law provided for three causes to exempt the

medial institutions from liability, including the patient’s fault, emergency

medical treatment, or restrictions imposed by the medical techniques.

Patient’s fault means that the occurrence or augment of the damages were not

because of the actor’s fault, by the victim’s fault. When patients or their kinship

refuses to cooperate with the medical institutions in carrying out medical treat-

ments that are consistent with the standards on medical diagnosis and treatment,

the medical institutions will not bear the liability to compensate for personal

injury to the patients. However, if the medical institutions or their medical doctors

have fault too, the medical institutions shall bear the appropriate liability of

compensation.

Emergency medical treatment means that when medical doctors have fulfilled

the reasonable obligation of diagnosis and treatment in emergency circumstances

such as saving the life of a dying patient, the medical institutions will not bear the

liability to compensate for damages to the patients.

Restrictions imposed by the medical techniques mean that when the medical

institutions have fulfilled the obligation of diagnosis and treatment that is consistent

with the current medical techniques; however, due to the restrictions imposed by

the current medical techniques, the medical measures taken to the patients did not

achieve the recovery but caused new damages, or the illness was difficult to

diagnose or cure under the current medical techniques, the medical institutions

will not bear the liability to compensate.


Mechanism of Third-Party Mediation on Medical Disputesin China

In China, the channels for solving the medical disputes mainly include the settle-

ment between the parties, mediation by the public health authority, court litigation,

and third-party mediation, the latter two of which are more commonly used by the

parties in solving the disputes unless who is responsible is so obvious that the

parties may take some dialogues to solve the disputes. Litigation before the court

may end up with judgment, mediation, withdrawal of the suit, or rejection of the

suit. Withdrawal of a suit is rare. In recent years, the cases on medical disputes

litigated before the court increased dramatically, but the rate of success by patients

is low, partly because it is difficult to collect the evidence on medical disputes, and

the litigation is time-consuming and expensive.

Since 2004, the practice of third-party mediation began to boom in China, which

played an important role in solving the medical disputes. For example, in the first

year after the establishment of Ningbo Mediation Committee, it accepted 307 cases

on medical disputes (including 135 cases of significant ones), of which 285 were

mediated successfully, and the actually paid compensation amounted to RMB

13.674 million (approximately US $2.072 million), accounting for 24.1 % of the

amount claimed by the patients. None of the doctors and patients broke the

agreements [8]. From April 2006 to October 2009, the Patient Rights Association

of Jining, Shandong, has received 937 interviews from patients and accepted

644 cases of medical disputes, of which 536 cases were successfully mediated,

accounting for a mediation success rate of 85.07 %, and 100 % mediation agree-

ments were performed. From January to October 2009, 254 cases were accepted,

and the mediation success rate was increased to 93.18 % [9].

Third-party mediation becomes the most important channel for solving medical

disputes besides litigation. As a non-litigation intermediary regime, some of the

third-party mediation systems rely on the professional associations, some are

organized by medical insurance, and some rely on the people’s mediation regime

that could obtain the support from the government and may gradually exert more

impacts. As of November 27, 2009, there were 56 places in 16 provinces, and

municipals in China have initiated the people’s mediation on medical disputes [10].

Regime of People’s Mediation on Medical Disputes and Its LegalBasis

People’s mediation means that the people’s mediation committee uses the methods

of persuasion and counseling, helps the parties to voluntarily reach mediation

agreement on the basis of equal consultation, and hence solve the civil disputes,

which is the Chinese way for easing contradictions and solving disputes via

non-litigation method. People’s mediation on medical disputes is the application

of the people’s mediation regime in the medical area.


On January 8, 2010, the Ministry of Justice, the Ministry of Public Health, and

the China Insurance Regulatory Commission jointly issued the Opinions on

Strengthening the Work of People’s Mediation on Medical Disputes, which encour-

ages the local authorities to follow the principle of “preferring mediation,” to adopt

the people’s mediation working regime, to take advantage of the features of

people’s mediation such as being grassroots, close to the life and familiar with

the public sentiments, and to actively participate in solving medial disputes.

The mediation committees are the specialized organizations of people’s mediation.

The various levels of authorities of justice and public health are required to actively

communicate with other authorities including the public security, insurance regu-

lators, public finance, and civil affairs and guide the establishment of the mediation

committees to provide the organizational support for solving medical disputes.

The mediation committees shall use methods such as persuasion, education, and

counseling to help the parties to the medical disputes getting rid of the estrangement

and reaching mediation agreements on the basis of equal consultation and mutual

understanding and accommodation.

Features of People’s Mediation on Medical Disputes

People’s mediation committee on medical disputes is in nature a third-party mas-

sive organization, independent from the patients, medical institutions, and the

government. It has the features of being specialized, neutral, nonconfrontational,

confidential, and voluntary.

The mediation committee is comprised of staff that have the special knowledge

on public health administration, medicine, law, insurance compensation, etc., and

have the good communication skill. It is a specialized organization of people’s

mediation, independent from the public health authority and will be supervised by

the justice authority. The parties to the medical disputes voluntarily apply for its

mediation and express their respective arguments. The mediation committee shall

privately mediate the medical disputes with a fair and objective position.

The mediation is free, and the people’s mediation agreement is recognized with

legal effect.

Operation of People’s Mediation on Medical Disputes

CompositionA people’s mediation committee shall be staffed with more than three permanent

mediators in principle. A database of mediators shall be established. The members

in the database must be respectable and may include the experts and scholars from

the arena of medicine, law, and sociology, such as retired medical expert, police,

prosecutor, judge, public notary, lawyer, and other legal workers.


Mediation Fee and Source of Working CapitalMediation by the mediation committees is free. The mediation committees may

raise the working capital through the channels or forms allowed under the law, such

as accepting public donation and sponsorship.

Mediation ProcedureAfter the occurrence of a medial dispute, either party to the dispute may apply

for mediation by the mediation committee. Upon receipt of the application, the

mediation committee shall assign a permanent mediator to learn the facts and start

the mediation. With regard to the cases where the disputes are relatively simple, the

characterization is relatively clear, and the mediation is relatively easy, it will

be directly mediated by the permanent mediator. With regard to the cases where

the facts are relatively complex, the gap between the parties is relatively large, and

the characterization is difficult, the relevant medical and legal experts will be

selected from the database of experts to form an expert assessment task force to

carry out an assessment over the case.

If both parties to the dispute agree to the mediation opinion, they can formally

sign the people’s mediation agreement to end the dispute. If the mediation is

unsuccessful, the mediation will be terminated, and the parties will be informed

to seek other channels under the law in solving the dispute.

Content and Legal Effect of Mediation AgreementIf a mediation agreement is reached via the mediation of the mediation committee,

a medication agreement will be produced. If the agreement takes the oral form, the

mediation committee shall record the content of the agreement.

The mediation agreement shall record the following items: particulars of the

parties, main facts, dispute and the liabilities of the parties, content of the agree-

ment, and method and period of performance. The mediation agreement shall take

effect upon signing by each party and the mediator, affixed with the seal of the

people’s mediation committee.

The mediation agreement is legally binding, and the parties shall perform the

agreement, subject to the supervision by the mediation committee. Upon the

conclusion of the mediation agreement under the mediation of the mediation

committee, if both parties believe necessary, they can jointly apply to the people’s

court for judicial recognition within 30 days when the mediation agreement takes

effect. After the court has recognized the mediation agreement according to the law,

one party may apply to the court for enforcement if the other parties refused to

perform or did not fully perform the mediation agreement.

Ready Reckoner

Areas of concern

China is facing more and more medical disputes.


Response

Third-party mediation proves to be a quick and efficient way in settling medical

disputes in China.

Summary

Medical disputes in China now are in an upward trend, showing both the increased

number of litigations and claims. The medical disputes in China may lead to civil,

criminal, and administrative liabilities but dominated by civil liability. In order to

better solve medical disputes, China is actively pushing for the regime of third-

party mediation on medical disputes. The people’s mediation on medical disputes is

in development in China and is playing an increasingly important role.

References

1. Ding S, et al. Treatment and prevention of medical disputes: from legal perspective. China

Mod Hosp Manag. 2007;8:36.

2. Hunan Province Committee of Chinese Peasants and Workers Democratic Party. Research

Report on Relationship between Doctors and Patients. Advance Forum. 2002;3:12.

3. Liu, Pingan. Analysis on Medical Safety in Zhejiang: No Trap Deriving Medical Disputes.

Health Daily. 7th Page, 2010;10:23.

4. Wu, Ping. Why the Relationship between Doctors and Patients are so Intense. Guangzhou

Daily. 10th Page, 2007;8:11.

5. First Civil Chamber of Beijing High Court. Trial, issues and countermeasures on damages in

medical dispute cases. Res Court Judgment Decis. 2007;10:42.

6. Jurisprudence Task Force on Medical Disputes of Southwest University of Political Science

and Law and Wuhou District People’s Court of Chengdu. Seeking the law itself – investiga-

tion report of Wuhou district people’s court of Chengdu on medical disputes. J Southwest

Univ Polit Sci Law. 2006;5:20.

7. Yang L. On tort law. 2nd ed. Beijing: People’s Court Publishing House; 2005. p. 134.

8. Ma J. Use the people’s mediation regime to settle medical disputes. Med Jurisprud. 2009;2:20.

9. Li X. Jining model – establishing the platform, soothing the channels, and creating “One-stop

diverse” new regime on mediation of medical disputes. Med Jurisprud. 2009;3:11.

10. Zhou T, Zhou Q. Fifty-six places in China initiated medical dispute mediation. http://news.qq.

com/a/20091127/002103.htm

Further Readings

Lin W. Research on resolution regimes of medical disputes. Beijing: Legal Press; 2008. p. 10.

Zhao, Min. Evaluation of the third-party mediation mechanism for medical disputes in China.

Haifa, Israel: Medicine and Law; 2011. p. 9.

Zhao M, Deng H. Disputes on medical malpractice and legal treatment. Wuhan: Wuhan University

Press; 2007. p. 1.


http://news.qq.com/a/20091127/002103.htm

http://news.qq.com/a/20091127/002103.htm

Documents

Legal and Forensic Medicine || Current Status and Legal Treatments of Medical Disputes in China