Interpretations of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Cases Involving Disputes over the Liability for Medical Damage

Fa Shi [2017] No.20

December 13, 2017

The Interpretations of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Cases Involving Disputes over the Liability for Medical Damage, adopted at the 1,713th meeting of the Judicial Committee of the Supreme People's Court on March 27, 2017, are hereby promulgated and shall enter into force as of December 14, 2017.

Interpretations of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Cases Involving Disputes over the Liability for Medical Damage

(Adopted at the 1,713th meeting of the Judicial Committee of the Supreme People's Court on March 27, 2017, and shall enter into force as of December 14, 2017)

For the purpose of correctly trying cases involving disputes over the liability for medical damage, safeguarding lawful rights and benefits of the parties concerned according to the law, helping form a harmonious relationship between doctors and patients, and boosting the development of hygiene and health undertakings, these Interpretations are formulated based on the Tort Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and other applicable legal provisions, and in consideration of judicial practices.

Article 1 A lawsuit where a patient claims that a medical institution, or the producer or dealer of a medical product, or an organization supplying blood shall bear the liability for tort, as he or she has suffered from personal or property damage in the course of medical treatment, shall be governed by these Interpretations.
A tort lawsuit filed by a patient who claims that he or she has suffered from personal or property damage in the medical beauty activities carried out by a beauty institution or the internal department of medical cosmetology established within a medical institution, shall be governed by these Interpretations.
A case involving a dispute over a medical service contract, filed by the party concerned, shall not be governed by these Interpretations.

Article 2 Where a patient has suffered from damage caused by the treatment offered by several medical institutions for the same disease, and thus lodges a lawsuit against some or all medical institutions where he or she was treated, the people's court shall accept such lawsuit.
After the patient has lodged the lawsuit against some medical institutions where he or she was treated, the party concerned shall be allowed to file an application to involve another medical institution, where the patient has received treatment, as the joint defendant or the third party. If truly necessary, the people's court may bring the related party into the lawsuit according to the law.

Article 3 A case where a patient has suffered damage caused by flaws in medical products and thus sues some or all manufacturers or dealers of the medical products and the medical institutions involved shall be accepted by the people's court.
Where the patient sues only some of the manufacturers or dealers of medical products and medical institutions, the party concerned shall be allowed to file an application to involve another related party as the joint defendant or the third party. If truly necessary, the people's court may bring the related party into the lawsuit according to the law.
Where the patient files a tort lawsuit, alleging that he or she has suffered from damage caused by a blood transfusion that is not up to standards, the provisions in the aforesaid two paragraphs shall apply mutatis mutandis.

Article 4 A patient demanding that a medical institution shall bear liability for compensation according to Article 54 of the Tort Law, shall present evidence that he or she has suffered from damage caused by the medical institution while receiving treatment there.
Where the patient intends to apply to have the medical damage identified according to the law, as he or she is unable to present evidence that the medical institution together with its medical staff is at fault and there is causality between the diagnosis and treatment and the damage caused, the people's court shall permit such application.
Where the medical institution claims that it shall not be held liable, it shall bear the burden of proof for defense causes specified in the first paragraph of Article 60 of the Tort Law.

Article 5 A patient demanding that a medical institution shall bear the liability for compensation according to Article 55 of the Tort Law, shall present evidence specified in the first paragraph of the preceding article.
Where the medical institution performs surgery, a special check or a special treatment, the medical institution shall be obligated to provide explanations and obtain written approval of the patient or his or her close relative, except for the circumstances specified in Article 56 of the Tort Law. Where the medical institution presents evidence that the patient himself or herself or his or her close relative has issued written approval, the people's court may recognize that the medical institution has fulfilled its obligation to provide explanations, unless the patient presents contrary evidence to rebut that of the medical institution.

Article 6 Medical records specified in Article 58 of the Tort Law shall include out-patient medical records, in-hospital logs, body temperature sheets, medical advices, test reports, materials for medical imaging tests, written consent to special checks (treatment), written consent to surgery, records of surgery and anesthesia, pathological materials, nursing records, medical expenses, and discharge record, as retained by the medical institution, as well as other medical records specified by the competent administration for health under the State Council.
Where a patient files an application according to the law with the people's court for an order for the medical institution to submit the dispute-related medical records it safekeeps, but the medical institution fails to submit the requested materials within time limits prescribed by the people's court, the people's court may presume the guilt of such medical institution, according to the provisions stated in the second item under Article 58 of the Tort Law, unless the failure to submit requested materials is attributed to objective reasons, such as force majeure.

Article 7 A patient who seeks compensation according to Article 59 of the Tort Law shall present evidence that the damage he or she has suffered from is attributed to the medical products used or the blood transfused.
Where the patient intends to apply for a medical forensic test as he or she is unable to present evidence proving the causality between the medical products used or the blood transfused and the damage caused, the people's court shall permit such application.
Where the medical institution, and the manufacturer or the dealer of medical products, or the agency that supplies the blood claim that they shall not be held liable, each of them shall bear the burden of proof for their own defense that the medical products used are free from any flaws or the blood supplied meets the relevant criteria.

Article 8 Where a party concerned intends to apply according to the law to have professional problems in the dispute over the liability for medical damage identified, the people's court shall permit such application.
Where the party concerned does not file such application for a forensic test, the people's court shall entrust a party with a forensic test within its power if it deems it necessary to identify the professional problems as stated in the preceding paragraph.

Article 9 Where a party concerned intends to apply to have the medical damage identified, both parties concerned shall determine a forensic examiner through consultation.
Where the parties concerned fail to reach a consensus on the forensic examiner, the method proposed by the people's court to select the forensic examiner shall apply if the parties concerned agree with such method; otherwise, the forensic examiner shall be designated by the people's court.
The forensic examiner shall be selected from experts who have the necessary identifying capabilities and meet the identifying requirements.

Article 10 Where the medical damage is to be identified as entrusted, the parties concerned shall submit truthful, complete and sufficient materials for forensic test purposes in accordance with the relevant requirements. Where such materials submitted do not meet the relevant requirements, the people's court shall notify the parties concerned of updating or providing additional materials.
Before the entrusted forensic test starts, the people's court shall request the parties concerned to check the materials under cross-examination.

Article 11 The application for an entrusted forensic test shall clearly specify what is to be identified and requirements for this purpose. The forensic examiner shall conduct the forensic test based on what is identified as entrusted and the requirements in this regard.
In an application to have medical damage identified, the following professional problems may be the items to be identified,
1. Whether the act of making a diagnosis and giving treatment involves any faults;
2. Whether there is any causality between the diagnosis and treatment and the damage caused, and if so, the extent of such causality;
3. Whether the medical institution has fulfilled its obligation to provide explanations and to obtain the written consent of the patient himself or herself or his or her close relative;
4. Whether there are any flaws in the medical products; and if so, whether there is any causality between such flaws and the damage caused, and if any, the extent of such causality;
5. The degree of the patient's damage or disability;
6. The nursing period, the rest period and the nutrition period for the patient; and
7. Other professional problems.
Forensic testing requirements include the qualifications of the forensic examiner, composition of the forensic examiner, identifying procedures, identifying opinions, time limit for the forensic test, etc.

Article 12 Opinions of a forensic test may, depending on all reasons, major reasons, equal reasons, subordinate reasons, or small reasons that cause the patient's damage, or no causality with the patient's damage, describe the extent of causality between the patient's damage and the diagnosis and treatment or medical products.

Article 13 Opinions of a forensic test shall be under cross-examination by the parties concerned.
Where the party concerned applies to have the forensic examiner testify at the trial, and the people's court agrees with the application after examination or it considers it necessary to have the forensic examiner at court, the forensic examiner shall be notified to testify at the trial. Where both parties concerned agree that the forensic examiner may give testimony through written statements, by means of audio-visual transmission technologies or via audio-visual materials, such way of giving testimony shall be permitted.
Where the forensic examiner is unable to appear in court due to health problems, natural disasters or other force majeure, or other justified reasons, the trial may be postponed; and the forensic examiner may give testimony through written statements, by means of audio-visual transmission technologies or via audio-visual materials.
Where the forensic examiner refuses to appear in court without giving reasons as stated in the preceding paragraph, and the party concerned does not agree with the opinions of the forensic test, such opinions shall not be accepted.

Article 14 Where the party concerned applies to invite one or two individuals with medical expertise to appear in court to give comments on the opinions of the forensic test or other professional matters of facts in the case, and the people's court agrees with such invitation, the individual(s) with medical expertise shall be notified to appear in court.
Comments made by the individual(s) with medical expertise as stated in the preceding paragraph shall be deemed as the statements of the party concerned, and may be used as the basis to ascertain the case's facts upon cross-examination.

Article 15 Where opinions on the forensic test for the medical damage given by the forensic examiner who is entrusted by the party concerned itself, are recognized by the other parties concerned, such opinions may be accepted.
Where the parties concerned jointly entrust a forensic examiner to issue opinions of the forensic test for the medical damage, but a party does not agree with such opinions, such party shall clearly specify its objections and the reasons therefor. Where there is sufficient evidence to justify the objections, after examination, the opinions of the forensic test shall not be accepted; where the objections raised are not justified, the opinions of the forensic test shall be accepted.

Article 16 Faults of the medical institution and its medical staff shall be determined according to laws, administrative regulations, rules and other applicable norms on diagnosis and treatment, in full consideration of the urgency of the patient's illness, individual characteristics of the patient, local medical level, qualifications of the medical institution and its medical staff, and other factors.

Article 17 Where the medical staff's failure to fulfill the obligation specified in the first paragraph of Article 55 of the Tort Law does not give rise to any personal damage to the patient, the patient's claim that the medical institution shall bear liability for compensation shall not be upheld.

Article 18 Where a medical institution has to give emergency treatment to a critically ill patient or deal with other emergencies but fails to obtain the opinions of the patient, it may be deemed as failure to obtain the opinions of the patient's close relative, as stipulated in Article 56 of the Tort Law, under any of the following five circumstances,
1. Where the patient's close relative is unknown;
2. Where the patient's close relative cannot be reached in a timely manner;
3. Where the patient's close relative refuses to give opinions;
4. Where the patient's close relative cannot reach a consensus on the treatment; or
5. Other circumstances as specified by laws and regulations.
Where the medical staff take immediate medical measures under any of the circumstances as listed in the preceding paragraph, upon approval of the person in charge of the medical institution or the head authorized by the medical institution, the patient's claim that the medical institution shall bear the liability for compensation shall not be upheld; where the medical institution as well as its medical staff is negligent in taking relevant medical measures under any of the circumstances as listed in the preceding paragraph, thus causing damage, the patient's claim that the medical institution shall bear the liability for compensation shall be upheld.

Article 19 Where the diagnosis and treatment of two or more medical institutions causes the same damage to the patient, and the patient thus requires these medical institutions to bear the liability for compensation, the liability for compensation due by each medical institution shall be determined respectively under different situations in accordance with Article 8, Article 11 or Article 12 of the Tort Law.

Article 20 Where the medical institution invites other medical personnel who are not its employees to carry out diagnosis and treatment of the patient, and the damage suffered by the patient is attributed to the invited personnel's faults, the medical institution inviting such medical personnel shall bear the liability for compensation.

Article 21 Where the damage suffered by the patient is attributed to flaws in the medical product used or the blood transfused that is not up to standards, the patient's claim that the medical institution, the manufacturer or the dealer of the defective medical product, or the agency supplying the blood shall bear the liability for compensation shall be upheld.
After the medical institution has paid the compensation, its recovery of such compensation from the manufacturer or the dealer of the defective medical product, or the agency supplying the blood, shall be upheld.
Where a medical product becomes defective or blood fails to meet relevant standards, as a result of the medical institution's faults, and the manufacturer or the dealer of the medical product or the agency supplying the blood has paid the compensation, the manufacturer or the dealer's or the agency's recovery of such compensation from the medical institution shall be upheld.

Article 22 Where flaws in a medical product and the false diagnosis and treatment by a medical institution jointly cause the same damage to a patient, the patient's claim that the medical institution and the manufacturer or the dealer of the medical product shall be held jointly liable shall be upheld.
Where the medical institution or the manufacturer or the dealer of the medical product has paid the compensation and then recovers compensation from other subjects held liable, the amount of the recovered compensation shall be determined pursuant to the extent of causality between the diagnosis and treatment and flaws in the medical product and the damage caused to the patient.
Where the transfusion of blood that does not meet relevant standards and the false diagnosis and treatment of the medical institution jointly cause the same damage to the patient, the provisions stated in the preceding two paragraphs shall apply mutatis mutandis.

Article 23 Where the manufacturer or the dealer of the medical product in question keeps manufacturing or selling such medical product, despite its knowledge of the flaws in this medical product, thus resulting in a patient's death or serious damage to the patient's health, the people's court shall uphold the appeal of the infringed party that the manufacturer or the dealer shall pay compensation plus the punitive damages of less than two times such compensation.

Article 24 Where the infringed party sues two or more medical institutions, requesting them to bear the liability for compensation, and the trials of the people's court find that the medical institution at the locality at the place of the court which accepts the case shall not bear the liability for compensation, but other medical institutions shall pay compensation, the compensation for disability or death shall be calculated differently under the following circumstances,
1. where only one medical institution shall bear the liability for compensation, the compensation criteria in place at the locality of this medical institution shall apply; and
2. where two or more medical institutions shall bear the liability for compensation, the compensation criteria in place at the locality of one of these institutions, relatively higher or the highest, shall apply.

Article 25 The circumstance where the close relative of a patient seeks compensation for the medical damage after the patient's death shall be governed by these Interpretations; and the circumstance where the individual demands recovery of such reasonable expenses as the patient's medical fees and funeral expenses it has paid shall be governed by these Interpretations.
For the purpose of these Interpretations, "medical products" include drugs, disinfectants, medical devices, etc.

Article 26 Where there is any discrepancy between these Interpretations and other judicial interpretations previously issued, these Interpretations shall prevail.
Cases that have not yet concluded after the implementation of these Interpretations shall be governed by these Interpretations; however, for a case which has been settled before the implementation of these Interpretations, if the parties concerned apply for a retrial or the court decides to retry it pursuant to the trial supervision procedures, these Interpretations shall not apply.