No one wants to have a medical accident. However, when someone is suffering from a doctor's medical mistake, with the damage resulted, he or she may feel angry, frustrated, and bewildered.
This area of law is complicated, below is a brief introduction one may need to know about a medical malpractice case in China. We hope this article would help to grasp the general roadmap of a medical malpractice lawsuit in China.
A medical malpractice is sometimes referred as "doctor negligence".
1. The threshold to bring a medical malpractice case is: a medical mistake resulting the patient's physical damage.
Not every unfortunate result in a hospital is a case of medical malpractice.
Being unsatisfied with a medical treatment does not necessarily give rise to a medical malpractice case. Under the Chinese torts law, to bring such a claim to court, it requires: damage, preventable medical mistake, and causation.
It means physical harm caused to something in such a way as to impair its normal function. For example, a doctor wrongfully cuts a patient's normal tissue instead of pathological tissue in a surgery. And this mistake has caused the patient losing the function which the normal tissue provided.
Preventable medical mistake
A preventable medical mistake is also known as doctor's negligence. In simple terms, it means a doctor or a medical professional has a duty to do something but they failed to do it. For instance, in one of our cases, the doctor failed to inquire the patient's previous history treatment records, which ultimately caused the surgery's failure and lead to the patient undertaking an additional surgery.
To be precise, it means the damage must be caused by the medical mistake and NOT the disease. For example, in an appendicitis surgery, a doctor wrongfully ligated the cecum and as a result, the patient undertook an additional surgery to release the ligation. The second surgery was caused by the doctor's mistake, the first one was caused by the disease. Therefore, the patient can recovery from the second surgery.
2. Who decides the issue of negligence?
In Unite States courts, each side attorneys will hire their own expert witness to argue this issue. Then a jury or judges will finally decide whether a negligence exist.
Unlike American system, the Chinese courts rely on Medical Associations or a Judicial Expertise Institution to decide whether there has been negligence. For choosing Medical Associations or a Judicial Expertise Institution, different provinces have different rules. For instance, Shanghai’s courts only rely on Medical Associations; but Beijing’s courts can take opinion from both.
The courts submit the evidence to the association. The association starts by summoning an experts' panel which is picked by both parties through draw lots. Then the panel arranges a hearing which both parties can state their opinion. After, the panel will issue a report which will describe: whether negligence exists; if so, what percentage of such mistake should a medical professional be liable for. The procedure in a judicial expertise institution is almost same, except the experts' panel is decided by institution instead of drawing lots.
3. Collecting evidence
In China, we do not have the process of "discovery" in civil procedure. But Chinese torts law grants the patient the right to request all the medical records from the hospital and imposes hospitals the obligation to keep the records. Therefore, a victim can collect all the medical records and invoices from hospital, bring them to a professional lawyer. Experienced medical malpractice attorneys are able to read through the medical records and victims' statements to decide if there is a case, even if the injured patients may not be able to explain clearly what they had been through due to the complicated medical terms.
In situations when medical records are not immediately available to the injured patient, such records also can be collected via attorney's representation.
4. In the case of death due to medical malpractice, ask for a postmortem examination first.
When the patient passes away in hospital and it is suspected to be caused by a medical mistake. It is advised to request a postmortem examination immediately, then bring the record to a lawyer. As such a postmortem examination can illustrate the reason of the death and there is a short time window (48 hours) for accurate forensic anatomy.
According to Chinese law, the hospital shall give the decedent's heirs the notice for applying the forensic anatomy. Sometimes, a hospital will ignore it. The ignoring will increase the decedent's heirs' burden to provide evidence.
5. Limited recovery
A victim may be compensated for all his damages. This includes economic damages, such as: medical expenses, lost earnings, and attorney fee, etc.; and noneconomic damages, such as pain and suffering.
But, the amount of such recovery is limited. We do not have "Eggshell skull doctrine" rule in China. The degree of injury was categorized into ten levels by law. Each level is divided into four sub levels of responsibility. There is a statutory rule for calculating the compensation. For example, in a case which a medical professional has 75% responsibility, the compensation of permanent disability will be: "average disposable income amount released by the National Bureau of Statistics" x 20 years x 75%.
6. Time limit (statute of limitations, time bar).
The statute of limitations for bringing a medical malpractice case was one year, it means that the injured patient had up to one-year to bring the case after it was known or should be known that the patient was injured as a result of a medical mistake. Cases filed after the expiry of this one-year period will not be allowed to proceed by the court. Which is to say the time may run out to file a medical malpractice case.
The newest civil law changes the statute of limitations to three year since October 1, 2017. However, there is an argument which said the statute of limitation of personal injury is still one year. Therefore, it is advised to keep in mind that a time limit exists. And one year is a safe choice to bring the case. The injured patient is advised to contact an attorney before time runs out.
7. A medical malpractice case can take long to complete.
The procedure of a medical practice can be lengthy due to the complexity of the case. Usually, if both parties come to a reasonable settlement, upon negotiation between the injured patient and the hospital, there may be no lawsuit proceeding afterwards. However, if an agreement cannot be reached, the case will go to trial and usually will need as long as six months to resolve. This six months' period does not include medical associations' procedure period. Additionally, it takes medical associations three months to finish the procedure, yet due to the large volume of cases nowadays, the schedule can be as long as one year or longer.
8. Attorney fee can be beard by defendants
Unlike in a contract case, each side pays its own attorney fee; Chinese law permit defendants to pay plaintiff's attorney fee in such case.
Also, cases can be taken on partial contingency basis by lawyers.
This means the lawyer charges only a small amount fee at first, no additional fee incurring while the case is ongoing. And the lawyer's fee is contingent upon a successful verdict or settlement of the entire case.
ABOUT THE AUTHOR:
Guo Jun is admitted to practice in China and New York (USA).
Jun has master degrees both in medicine and law. His cross-border background and experience enable him quickly understand medical cases' issues and provide clients with appropriate legal services.
Guo Jun's practice focuses on healthcare, intellectual property, litigation, dispute resolution, and reinsurance.
Jun has also represented many infringement cases, including medical malpractice case for a foreigner in China, domain name arbitration cases adjusted in WIPO, common law trademark infringement case which was selected by Shanghai Courts as representative cases, design patent infringement cases selected by The Supreme People's Court as top ten intellectual property cases, etc.