1. On China’s medical negligence cases
In 1987, ”the old Medical Accidents Treatment Regulations” were made by the central people’s government. According to this regulation, before the beginning of a lawsuit, the plaintiff had to apply for a technical appraisal for the medical negligence to the local Health Administration Department, which is in charge of supervision of the hospital , and without an affirmative accident appraisal summingup, no lawsuit. So it was uttermost hard to get compensation from hospitals.
In 2002, an very important judicial interpretation made by the supreme court, named ”Provisions on Civil Action Evidence”, and it prescibes in cases involving medical negligence, a reversal of the burden of proof should be applied. That is, the burden of proof shifts to the hospitals.
Considering there is hospital’s responsiblity to proof no negligence, it’s ridiculous to continue the regulations that force the plaintiff call for an appraisal. So in the same year of 2002, the old Medical Accidents treatment Regulations were repaired. After sept.1st,2002, the technical appraisal for the medical negligence is not necessary process before the suitcase,but of couse it is usually still a necessary process during the case. Some scholar thought the reverse proof of burden rules is hypercorrection (too far east is west) because it will hurt doctor’s enthusiasm, finally will hurt society.
Now,there did exist the terrible untrust between doctors and patients.
Let’s take one for example, a very famous case happened in beijing. In 2007, an immigration worker named XiaoZhijun, was scared by the notification in the operation agreement and he refused to signature his name to agree his wife’s (named Li Liyun) caesarean birth operation. Without his signature, the doctors were afraid of take responsiblity, so refused to do anything helpful. Finally, Li Liyun died in her husbend’s arms. A viewpoint criticized Xiao Zhijun’s stupid and thought he is a murderer. And others supported no blame on Xiao Zhijun, it’s the doctors’ scandal who were discarding their essential profession morality.
In 2008, Li Liyun’s parents brought an accusation agaist the Xiao Zhijun and the Hospital with three lawyer’s help. For some reason, they withdrew the accusation against Xiao Zhijun and focused on the hospital’s negligence. In July, 2009, with two appraisal reports, which concluded that there was no relationship between the hospital’s negligence and death , the plaintiff lost this lawsuit. Fortunately, the hospital paid voluntarily ¥10,000 compensation .
Some commentary said there were no winners, all of the people are the sufferers in this case.
In our Tort Law draft, which has been put into the congress for discussion In 2008, says the plaintiff should prove there is an negligence, contrary to the supreme court’s interpretation in Provisions on Civil Action Evidence. This article draft is controversial.
2. On China’s Tort Law
There is not a uniform code of civil law in China, only a code named General Civil Law Rules made in 1980′s, in which there are some principle articles about all kinds of civil liability. And there are some articles in some law or regulations, such as Civil Procedure Law, Product Quality Act, etc.
Since 2002, scholars have been drafting Tort Law, but there are so many disputes and different views, so in spite of the latest years the draft code has been put on the surface of the congress’s desk, but was yet passed and it’s good to lay aside until the kinds of matters be thought more clearly.
Vicky