The Medical Negligence Law of China After the 2009 Tort Law Reform: Has It Made A Difference?

Project: Research

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Description

One central mission of China’s 2009 Tort Liability Law is to reform the previous medical negligence law, which was notorious for its legal barriers that prevented the victims of medical negligence from obtaining fair and reasonable compensation. Chapter VII of the Tort Liability Law, titled “Liability for injury in medical treatment”, has introduced a set of new provisions on medical negligence liability, in an attempt to better balance the interests of the patient victims and the health care providers in medical negligence disputes. However, it is far from clear whether such a legislative purpose has been achieved in judicial practice, especially when the Tort Liability Law has failed to offer clear provisions with respect to three critical issues for determining medical negligence liability, including the two-track system, the burden of proof on causation, and the form of medical authentication. Drawing on the datasets to be constructed on court judgments of medical negligence cases applying the new medical negligence law during the first five years of the implementation of the Tort Liability Law, this project will conduct both qualitative and quantitative empirical research to analyze the following three interrelated questions. First, how the courts, in determining medical negligence liability, deal with the above three issues unsettled by the Tort Liability Law. Second, whether (if yes, and to what extent) the new medical negligence law has made the patient victims in medical negligence litigation better off. Third, how the medical negligence law should be refined in the future. This project will generate empirical findings on the effects of the new medical negligence law after the 2009 tort law reform, and provide socio-legal analysis of the empirical findings. It will present recommendations for the improvement of the medical negligence law of China. It will also, through the lens of medical negligence litigation, shed light on judicial activism in reforming the law in China.

Detail(s)

Project number9042100
Grant typeGRF
StatusFinished
Effective start/end date1/01/1528/12/18

    Research areas

  • Medical Negligence Liability,Tort Law,Medical Negligence Litigation,Judicial Activism,