The Rise and Decline of the Reversal of the Burden of Proof in China's Medical Negligence Law: A Political Economy of Lawmaking Perspective
An issue of central importance to the medical negligence law reforms in China over the past decade is the allocation of the burden of proof between the plaintiff patient and the defendant medical care provider in medical negligence actions. From a political economy of lawmaking perspective, this article examines the evolution of the burden of proof rules, with a focus on the reversal rule developed by the judiciary. Drawing extensively on firsthand legislative materials, this article argues that the successful lobbying of the medical profession in the legislative process leading to the enactment of the 2010 Tort Liability Law explains the nonadoption of a full-blown reversal of the burden of proof rule for medical negligence actions in the law.
Incidence of Medical Malpractice Lawsuits and Its Relationship to the Growth of Private Hospitals
Doctor-patient relationship has become an intense concern in public health in recent years. Medical malpractice lawsuits have presented an increasing trend over past decade. This study aims to describe distributions of medical malpractice lawsuits across different provinces and to investigate its relationship to the growth of private hospitals. Methods Data was drawn from China Judgments Online, the China Health Statistic Yearbooks and China Statistical Yearbooks between January 1, 2010 to December 31, 2016. Private hospitals expansion was measured by the number and proportion of private hospitals, the ratio of outpatient visits from private to public hospitals and the ratio of discharges from private to public hospitals. Fixed-effects negative binomial regressions were utilized to estimate the association between the growth of private hospitals and the number of medical malpractice lawsuits.
Corrupt Practices in Chinese Medical Care: The Root in Public Policies and a Call for Confucian-Market Approach
This paper argues that three salient corrupt practices that mark contemporary Chinese health care, namely the over-prescription of indicated drugs, the prescription of more expensive forms of medication and more expensive diagnostic work-ups than needed, and illegal cash payments to physicians—i.e., red packages—result not from the introduction of the market to China, but from two clusters of circumstances. First, there has been a loss of the Confucian appreciation of the proper role of financial reward for good health care. Second, misguided governmental policies have distorted the behavior of physicians and hospitals. The distorting policies include (1) setting very low salaries for physicians, (2) providing bonuses to physicians and profits to hospitals from the excessive prescription of drugs and the use of more expensive drugs and unnecessary expensive diagnostic procedures, and (3) prohibiting payments by patients to physicians for higher quality care. The latter problem is complicated by policies that do not allow the use of governmental insurance and funds from medical savings accounts in private hospitals as well as other policies that fail to create a level playing field for both private and government hospitals. The corrupt practices currently characterizing Chinese health care will require not only abolishing the distorting governmental policies but also drawing on Confucian moral resources to establish a rightly directed appreciation of the proper place of financial reward in the practice of medicine.