On Legal Risks Of Medical Services: A Comparative Study On Tort Liability Law Of The People’s Republic Of China And Common Law

This thesis is an attempt to draw the attention on the legal risks faced by the medical institutions in China after the enforcement of the Tort Liability Law of the People’s Republic of China. When the relationship between medical institutions and patients deteriorates, the law has become a hot topic for discussion again. Thus, it is timely to reexamine the effectiveness and efficiency of the law itself in addressing the issues of difficulties a n d high medical cost in o b t a i n i n g medical services. On the issue of difficulties in obtaining medical services, apparently, it is an issue of the distribution of medical resources. As long as the government increases the number and improves the quality of medical resources, this issue would eventually be addressed.As for high medical cost in obtaining medical services, it is a more complicated one. In addition to the market force of supply and demand, escalating consumer price and advancement in medical technology, legal risks faced by the medical institutions is also one of the important factors of this issue. Despite of this, research, whether within China or overseas on the relations between legal risks and high medical cost is next to nothing. In order to fill up this vacuum, this dissertation will emphasize its’ research on the relations between legal risks and high medical cost, and to examine the provisions related with medical services under the Tort Liability Law, so that to evaluate whether the Law has generated positive impact in addressing the issue of high medical cost.Methodology on this comparison in principle, could be divided into two categories; namely homogeneous and heterogeneous comparison. This dissertation is of the view that homogeneous comparison in general would not be able to reflect the actual causes of the issue. As such, this dissertation chooses the heterogeneous comparison between the Tort Liability Law and Common Law. In this context, by making a comparison on the legal risks faced by medical institutions under the Tort Liability Law with Common Law is new for all.It is well established that risk and cost are in parallel. This dissertation firmly believes that if the legal risks faced by the medical institutions could be reduced, and with the assistance of other factors, issue of high medical cost would eventually be harmonized and addressed.From a macro perspective, there are two universal natures of medical services which require our sufficient attention; namely first, the medical result is never an absolute one; and secondly, the relationship between doctor and patient is of fiduciary. In the context of medical institutions in China, there are three major contributing factors which have resulted in this scenario. First, it is due to the legal and judicial positions in over-protecting the interests of patient. This conclusion is made on the basis of the onus of proof lies on the medical institutions under Evidence Rules. Although there is nothing wrong in protecting the interests of the patient, but the interests of the medical institution should also be protected equally under the law. Secondly, it is due to the uncertainty and limitation of the Tort Liability Law and as a result, the legal risks faced by the medical institution becomes uncontrollable. This conclusion is reflected under the provisions on the standard of care in judging medical negligence and standard of proof. Thirdly, it is due to the inconsistency in judicial decision making. Decisions in the judicial court of China reveal that should there be a medical dispute, the medical institution may be facing one of the three possible outcomes; namely first, it is on “fault-liability”, second, a “win-win” situation for both parties after medication; and thirdly, “non-fault liability”.In reliance on this logic, this dissertation, first, will examine the cause and effect of legal risks, the legal backgrounds of both China and Common Law on medical services, and thereafter making comparisons between the practice under the Tort Liability Law and Common Law which include the compensatory aspect under fault liability, duties in diagnosis and to inform patient, onus of proof, exemption clauses, medical emergency, privacy, product liability and force majeure. This dissertation will propose amendments related with the medical services under the Tort Liability Law as its conclusion.