Lifting the Veil of Mental Suffering Awards in Medical Negligence Cases in China

Description

Assessing non-pecuniary damages in a consistent and predictable way is of central interest to tort law research and reform. Mental suffering damages, the equivalent term in Chinese tort law to non-pecuniary damages, are prevalently claimed in medical negligence litigation. Three categories of mental suffering damages may be awarded for medical negligence in China: mental suffering awards to an injured patient for his “pain and suffering” and “loss of amenities”; mental suffering awards to the close relatives of a deceased patient for their “loss of consortium”; and mental suffering awards to a patient whose right to informed consent was infringed but suffered no injury as a consequence. Although the Supreme People’s Court has required lower courts to consider six factors in assessing mental suffering damages, whether and how they consider and weigh these factors in medical negligence cases remains a mystery. The conflicting local rules on mental suffering damages further diminish the consistency and predictability of the law. Given little literature investigating Chinese judicial practice of awarding mental suffering damages in medical negligence cases, this project will fill the gap through a multi-dimensional research. Specifically, the first part of this project will present a doctrinal dimension through doctrinal research on the inconsistent local rules on mental suffering damages for medical negligence. The second part will supply an empirical dimension through large-scale empirical research to investigate the determinants of the three categories of mental suffering damages by drawing on three datasets to be constructed on judicial decisions of medical negligence cases involving the three categories of mental suffering damages. The third party will explore a legislative dimension through comparative and socio-legal research to offer reform proposals on assessing mental suffering damages for medical negligence so as to promote the consistency and predictability of the law. This project will generate unprecedented empirical findings on Chinese judicial practicing of assessing mental suffering damages for medical negligence and provide socio-legal analysis of the empirical findings. It will present reform proposals on damages assessment to improve Chinese law on mental suffering damages for medical negligence. This project will also, through the case of mental suffering awards, shed light on the exercise of judicial discretion of Chinese courts.