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Causal Uncertainty in Chinese Medical Liability

Xiaowei Yu

1 Defining Causation in Chinese Tort Law

Causation is an essential criterion of liability in Chinese tort law. In China, the statue directly

applicable to tort claims was the General Principles of the Civil Law (1986)1 (hereinafter

GPCL) until it was replaced by the currently applicable Tort Liability Law (2009)2 (hereinafter

TLL) on July 1, 2010. Similar to many European jurisdictions (Spier and Haazen, 2000; von Bar,

2000, p. 435), China recognizes causation as a requirement of tort liability, as evidenced by

reading the general clauses of tort liability - art. 6 para. 1 of the TLL. It reads: “One who is at

fault for infringement upon a civil right or interest of another person shall be subject to the

tort liability,” which is roughly equivalent to its predecessor - art. 106 para. 2 of the GPCL.3

The word “infringement (侵害)” unequivocally indicates that there must be a causal link

between fault and damage in order for a tortfeasor to be held liable.

Causation is also a requirement of medical malpractice liability. Medical malpractice is

treated as a special type of tort by the TLL, which is regulated by Chapter 7 under the title of

“Liability for Iatrogenic Injury (医疗损害责任).” Its specialness lies in the fact that the locus of

liability is placed solely on institutional health care providers (art. 54 TLL), the fact that in

some cases4 a statutory rule of presumption of fault may apply (art. 58 TLL), and the fact that

strict liability applies to cases where iatrogenic injuries were caused by the “defect of any drug,

medical disinfectant or medical instrument” (art. 59 TLL). More remarkably, art. 54 of the TLL

functions as an independent general clause for medical malpractice liability in the sense that

it is sufficient to base malpractice claims on art. 54 without citing art. 6 para. 1. Modelled on

art. 6 para. 1, art. 54 provides in more detail: “Where a patient sustains any harm during

diagnosis and treatment, if the medical institution or any of its medical staff is at fault, the

medical institution shall assume the compensatory liability.” The word “sustain (受到)” also

implicates a requirement of causation between fault on the part of health care providers and

harm suffered by patients.

Despite the fact that causation plays an essential role in tort law, none of the provisions

in the TLL or the GPCL has ever defined this term. As a matter of fact, causation theories are

largely developed by legal scholars and judges in China. During the last two decades of the 20th

century in China, the dominant idea about the causation rule in tort law is the so-called

Xiaowei Yu: PhD candidate at Maastricht University (Xiaowei.yu@maastrichtuniversity.nl). 1 General Principles of the Civil Law 民法通则 (promulgated by the Nat’l People’s Cong., Apr. 12, 1986, effective Jan. 1, 1987, amended Aug. 27, 2009) 1986(2) SUP. PEOPLE’S CT. GAZ. 15, translated in (Lawinfochina). 2 Tort Liability Law 侵权责任法 (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 26, 2009, effective Jul. 1, 2010) 2010(1) STANDING COMM. NAT’L PEOPLE’S CONG. GAZ. 4, translated in (Lawinfochina). 3 Art. 106 para. 2 of the GPCL provides, “Citizens and legal persons who through their fault encroach upon state or collective property, or the property or person of other people shall bear civil liability.” 4 Art. 58 of the TLL provides that a medical institution shall be presumed to be at fault for any iatrogenic injury if the institution or its medical staff members are proven to have (1) violated any statutorily required procedure or standard for diagnosis and treatment, (2) concealed or refused to provide relevant medical record, or (3) forged, tampered or destroyed any relevant medical record.

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“necessity5 theory (必然因果关系说).” According to this theory, causation only exists where

there is “an inner, intrinsic and inevitable link (内在的、本质的、必然的联系)” between the

injurious act and damage (Zhao, 2008), i.e. where the movement from the injurious act to

damage indicates a trend that is inevitable and absolutely certain according to objective

natural law (Jiang, 2010, p. 223). This approach was claimed to be based on dialectical

materialism and influenced by the then Soviet law (Zhao, 2008), which is also similar to Kant’s

view that D necessarily follows from A or Hume’s view that in every instance D always follows

A, if A is said to be the cause of D (Young, Faure and Fenn, 2004). Put another way, the necessity

theory requires that A is a sufficient condition for D to occur and the causal trend is certain. It

does not matter whether A is a necessary condition for D or not. However, in modern tort cases,

especially those involving industrial and medical accidents, it is extremely difficult for victims

to prove that D necessarily follows from A. For instance, many treatment outcomes are random

rather than predetermined and statistical regularity such as the cure rate is based on

probabilities (Zhao, 2008). Therefore, the necessity theory considerably limits both the

possibility of establishing tort liability and the scope of compensation, being extremely

disadvantageous to the protection of the patient’s interests.

The stringent requirement of the necessity theory has been challenged and relaxed. Since

the 1990’s, the necessity theory had been widely criticized by the academia. The first scholar

challenged the orthodox necessity theory was perhaps Liang (1989). In his commentary on

Zhang & Zhang v. Zhang,6 which was published on the Supreme People’s Gazette in 1989,

Liang criticized the necessity theory on the grounds that to understand the “inner, intrinsic

and inevitable link” between objective things is beyond the capacity of most judges (ibid.).

What judges can do is to decide cases mainly in accordance with “the common norms of social

life, the concepts of equity and justice, boni mores and normal human feelings” (ibid.). After

the criticism, Liang advocated the use of the adequacy theory, which was also implicitly

employed in Zhang & Zhang v. Zhang. In the case, the victim Mr. Zhang had his left inner ankle

wounded due to an accident on a construction site. The hospital appropriately treated him but

failed to save his life. Mr. Zhang later died of septicopyemia, septic shock and multiple organ

failure, which was not due to any fault on the part of the hospital. Had the court adhered to the

necessity theory, the defendant-employer would not have been held liable because death does

not necessarily follow a leg wound. On the contrary, the court nonetheless confirmed that the

victim’s death could only have been attributed to the industrial injury. Although the court had

not expressly mentioned based on which theory the causation was established, Liang (1989)

argued that the decision could only be explained on the basis of the adequacy theory (相当因

果关系说) rather than the necessity theory. According to Liang, causation can be established

if, based on currently available knowledge and experience, an ordinary person agrees that

there may be the same harm under the same circumstance.

Liang’s commentary on Zhang & Zhang v. Zhang marked a turning point in Chinese

causation theories in tort law. Although Zhang & Zhang v. Zhang was not adjudicated by the

5 The word “necessity” here only refers to a situation that is inevitable, which should not be confused with the legal “defense of necessity.” 6 Lianqi Zhang & Guoli Zhang v. Xuezhen Zhang 张连起、张国莉诉张学珍损害赔偿纠纷案, 1989(1) SUP. PEOPLE’S CT. GAZ. 23 (Tianjin Tanggu Dist. People’s Ct. 1988) (China).

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Supreme People’s Court,7 the publication of the case on its official gazette clearly indicated

the Supreme Court’s preference for the adequacy theory. Later, more and more scholars

proposed to introduce the adequacy theory from German law into Chinese tort law (Zhu, 2004;

Yang, 2010, p. 98; Cheng, 2011, p. 181; Wang, 2011, p. 375). Currently, it seems that the

adequacy theory tends to play a more important role in tort decisions (Cheng, 2011, p. 182).

In spite of vital importance, neither the TLL/GPCL nor any judicial interpretation8 has

ever provided for the definition of causation. Nevertheless, some clues to its definition can be

discovered at the local level. For instance, two provincial high courts expressly define the

adequacy theory by issuing judicial guides9 within their own jurisdictions. In 2005, the

Shanghai High People’s Court enacted the Guide to the Trial of Medical Malpractice Cases

(2005) 10 (hereinafter Shanghai Guide). Art. 13 of the Shanghai Guide provides that the

determination of causation shall be based on the adequacy theory – “an adequate causation

exists between a negligent treatment and an injury if the treatment is the conditio sine qua non

of the injury and if the treatment substantially increases the objective probability of the

occurrence of the injury.” Likewise, the Jiangsu High People’s Court issued the Guide to the

Trial of Tort Compensation Cases (2011)11 (hereinafter Jiangsu Guide), art. 5-1 of which

provides for the definition of the adequacy theory as follows:

There is causation between an action and an injury, if the injury will not occur but for the action,

and it is reasonably likely that the presence of the action will result in the injury; there is no

causation, if the injury will not occur but for the action, but the injury will normally not occur even

in the presence of the action.

Combining the foregoing two guides, it is evident that the adequacy theory bases causation on

two essential tests: (1) the “but for” or “conditio sine qua non” test, and (2) the “adequacy” –

an increased objective probability or reasonable likelihood. This two-step approach is

extremely similar to that of German tort law (Magnus, 2000, pp. 64–65). Currently, however,

there is no evidence that a third step – policy considerations such as those associated with the

protective purpose of the violated rule – has been or will be adopted by Chinese courts yet. In

7 The Chinese court system in the mainland consists of local courts, special courts and the Supreme People’s Court, with all the first two subject to the supervision of the latter. There are 32 provincial jurisdictions, each of which has a three-level court system: district people’s courts at the grassroots-level, intermediate people’s courts at the municipal level and high people’s courts at the provincial level. Normally, most civil cases of the first instance are tried before district courts and those of the second instance before intermediate courts. The second instance is the final instance. Therefore, the vast majority of civil cases will not reach the Supreme Court. Nevertheless, the Supreme Court has the power to overrule or retry any erroneous local adjudications if the Supreme Court deems it necessary. The Supreme Court also regularly select exemplary local decisions and publish them in order for all local courts nationwide to follow. For more detailed information about China’s court system, see China’s Judiciary, available at < http://www.china.org.cn/english/Judiciary/31280.htm > (accessed November 19, 2015). For the recently established Chinese Guiding Case System, see Deng (2015). 8 In China, the Supreme People’s Court is empowered by Constitution to enact judicial interpretations concerning the application of law. Judicial interpretations can be directly cited in decisions and are as applicable and enforceable as national laws promulgated by the People’s Congress or its Standing Committee. 9 Local judicial guides issued by high or intermediate courts are not judicial interpretations. They are by no means applicable rules and cannot be directly cited in decisions. In practice, nevertheless, these local guides are highly influential in local judges’ application of law in the sense that cases of the first instance may be overruled by appellate courts if trial judges do not strictly follow relevant guides issued by the appellate courts. In other words, local judicial guides represent opinions of appellate courts. 10 Guide to the Trial of Medical Malpractice Cases 医疗过失赔偿纠纷案件办案指南 (promulgated by the Shanghai High People’s Ct., Sep. 20, 2005, effective Sep. 20, 2005) (Chinalawinfo), translated by the author. 11 Trial Guide to the Trial of Tort Compensation Cases 侵权损害赔偿案件审理指南 (promulgated by the 1st Civil Trial Chamber Jiangsu High People’s Ct., 2011, effective 2011) (Chinalawinfo), translated by the author.

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practice, many Chinese courts also refer to the first step as causation in fact (事实上的因果关

系) and the second one as causation in law (法律上的因果关系). It should be noted, however,

that the Chinese version of causation in law is different from its counterpart – “remoteness”

or “legal cause” or “proximate cause” in the common law (Rogers, 2000, p. 40). Whereas the

test for the former is the probability-based “adequacy,” the leading test for the latter is

foreseeability (ibid.).

2 Burden and Standard of Proof

2.1 The Burden of Proof

In China, the burden of proof in civil cases rests on the plaintiff as a matter of principle unless

otherwise provided by the law. According to art. 2 para. 2 of the Provisions on Evidence in Civil

Procedures (2001)12 (hereinafter PECP), when the party that bears the burden of proof fails

to produce sufficient evidence to support his allegations, he will face unfavorable

consequences.

In medical malpractice cases, the issue of the burden of proof is complex and

controversial. For the period 1986-2001, the GPCL, in conjunction with the Measures for the

Handling of Medical Accidents (1987) 13 (hereinafter MHMA), were applicable to the

resolution of medical malpractice claims. There was no special provision on the burden of

proof regarding malpractice claims and it was the plaintiff-patient that bore the burden of

proving all elements of malpractice liability during that period. This general allocation of the

burden of proof was dramatically reversed for medical malpractice liability in the following

decade (2001-2010).

As of 2001, according to art. 4 para. 1 sub-para. 8 of the PECP, the defendant-hospital

began to bear the burden of proving the absence of both fault and causation while the plaintiff-

patient only had to prove that he had suffered iatrogenic injuries in the defendant-hospital.

This nearly “full” reversal of the burden of proof was criticized especially for two reasons

(Shao, 2013). First, it might encourage frivolous actions. Patients will be more willing to file

malpractice claims if they bear little burden of proof. Second, it might induce providers to

practice defensive medicine. Providers might take excessive precautions in respond to

increased risk of losing a malpractice lawsuit due to failure to disprove causation and fault.

As a result, in 2010, the reversal rule was reversed once more by art. 54 of the TLL back

to the original state. For the time being, it is normally the plaintiff-patient that has to prove the

presence of harm, negligence and causation. There is still one exception to the general

allocation of the burden of proof – the defendant-hospital is presumed to be at fault under one

of the three circumstances14 provided for at art. 58 of the TLL. It appears that art. 58 of the

12 Some Provisions on Evidence in Civil Procedures 关于民事诉讼证据的若干规定 (promulgated by the Sup. People’s Ct., Dec. 21, 2001, effective Apr. 1, 2002) 2002(1) SUP. PEOPLE’S CT. GAZ. 22, translated in (Lawinfochina). 13 Measures for the Handling of Medical Accidents 医疗事故处理办法 (promulgated by the St. Council, Jun. 29, 1987, effective Jun. 29, 1987, annulled Sep. 1, 2002) 1987(18) ST. COUNCIL GAZ. 614, translated by the author. 14 See supra. note 4.

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TLL only conditionally reverses the burden of proving fault rather than causation. However,

when reading the last two sub-paragraphs of art. 58 closely, it is questionable whether

causation is presumed as well. When the plaintiff-patient is denied access to his medical

records or the records are forged, tampered or destroyed, it is virtually impossible for the

plaintiff-patient to prove the existence of causation, for medical records are the key evidence

in medical malpractice cases (Ye, 2012). There is some evidence showing that courts tend to

hold the defendant-hospital liable in cases where there are some obstacles to obtaining

authentic medical records. For example, in Zhang v. Suiping Hospital,15 the victimized patient’s

medical records were forged. The Suiping Court presumed the defendant-hospital to be at fault

in accordance with art. 58 sub-para. 3 of the TLL, and held the defendant directly liable for the

patient’s death “according to some legal provisions.” The court did not clarify what “some legal

provisions” were. Given the fact that the court only cited art. 58 sub-para. 3 in the decision, it

is reasonable to assume that the court applied sub-para. 3 by analogy to the determination of

causation.

2.2 The Standard of Proof

Common law countries and civil law countries approach the standard of proof differently. In

common law systems, whereas a very high standard – “beyond a reasonable doubt” – applies

to criminal proceedings, a relatively low “more-likely-than-not” (at least 51%) standard,

termed “preponderance of evidence” in the US and “balance of probabilities” in the UK, is used

in civil cases (Clermont and Sherwin, 2002; Taruffo, 2003; Wright, 2011; Schweizer, 2013).

Unlike common law, it is commonly argued that there is no distinction between standards of

proof applying to civil and criminal proceedings in civil law systems (ibid.). In France, the

subjective persuasion of a single judge – “intime conviction” – is required (ibid.). In Germany,

the standard is interpreted as a “full judicial conviction in the form of a degree of certainty that

silences doubts for practical purposes, even if it does not eliminate them entirely” (Stauch,

2008).

The standard of proof in Chinese law, however, seems as uncertain as the causal link

between wrongful treatment and harm done. Generally speaking, the civil procedure and

proof system in China follows the continental tradition and is basically inquisitorial. The Civil

Procedure Law (2012)16 (hereinafter CPL), however, never specifies what the standard is.

According to scholarly opinions, the same standard of “clear facts, unquestionable and

sufficient evidence” (事实清楚，证据确实充分) applied to both criminal and civil proceedings

in the 1990s (Wang, 1999). The application of this very high standard to civil cases has been

subject to fierce criticism and a general consensus among scholars has been reached that a

less strict standard of proof should be applied to civil cases (Zhang, 2003). Consequently, the

Supreme People’s Court set the standard of proof for civil proceedings at art. 73 para. 1 of the

PECP, which reads as follows:

15 Jiayou Zhang et al. v. Suiping County People’s Hospital 张加友等诉遂平县人民医院医疗损害责任纠纷案, (Chinalawinfo) (Henan Province Suiping County People’s Ct. 2013) (China). 16 Civil Procedure Law 民事诉讼法 (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 9, 1991, effective Arp. 9, 1991, amended Oct. 28, 2007, Aug. 31, 2012) 2012(Z2) NEW L. & REG. 3, translated in (Lawinfochina).

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Where both parties concerned produces contradicting evidences to prove a same fact but neither

has enough evidence to rebut the evidence of the other party, the People’s court shall determine

which evidence are obviously more forceful than the other evidence by taking the case into

consideration, and shall affirm the evidence that are more forceful [italics added].

Although drafters of the PECP interpreted the “obviously-more-forceful” standard as “high

probability” (高度盖然性) standard, they did not clarify how high the probability should be

(Li, 2002). Some scholars advocate that this probability should be “nine times out of ten” (Li,

1999) or at least 70% (Wu, 2013). Therefore, similar to common law, Chinese law adopts a

probability-oriented rather than intime conviction approach to the standard of proof in civil

cases. However, the high probability standard demands a higher probability than just being

“more likely than not.”

Be that as it may, due to lack of clear definition of the “high probability,” Chinese judges

excise their discretion to interpret the required degree of proof. A recent case study shows

that many judges equate the “high probability” standard with the “preponderance of evidence”

and some judges simply apply the “preponderance of evidence” directly even without

reference to the “high probability” standard (ibid.). Because there are dividing interpretations

of the “high probability” standard, the application of the standard of proof in civil cases is not

unified and consistent in China.

3 Legal Approaches to Causal Uncertainty

3.1 The Multiplicity of Causal Factors

In many tort cases, especially those involving medical malpractice, the adequacy theory may

run short of ways in dealing with complex situation. Causation issues can be complicated in

that there is usually more than one causal chain or cause that results in the same damage. For

instance, injuries suffered by patients during treatment may be caused by multiple causes.

Besides medical errors and system failures, injuries may result from (1) the patient’s

underlying medical condition or his vulnerabilities and predispositions, or (2) risks inherent

in treatment beyond physicians’ control such as unavoidable complications (Stauch, 2008, p.

76; Yang, 2008; Wang, 2014). The “but for” test often fails to screen out the cause of an injury,

because the injury might nevertheless occur in the absence of the faulty treatment. The

“adequacy” test is sometimes doubtful as well due to the fact that it lacks a clear threshold. It

is essential to know how courts resolve issues about causal uncertainty.

3.2 The Categorization of Causal Uncertainty

Five types of typical cases may be particularly conducive to the categorization of causal

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uncertainty in medical malpractice cases17:

Case 1: P underwent heart surgery in Hospital D1. The surgery was performed by Dr. D2, who is an official

medical staff member of Hospital D3. P privately employed Dr. D2 to perform the surgery without the

permission of Hospital D3. Hospital D1 agreed to provide an operating room and an anesthetist and

several nurses. Few days after the surgery, a piece of sterile gauze was detected inside P’s chest. It is

uncertain whether Dr. D2 or any medical staff member of Hospital D1 negligently dropped the piece of

gauze.18

Case 2: After being accidently wounded, P went to Hospital D1 and Hospital D2 successively. During

hospitalization, both hospitals provided P with blood transfusion. After treatment, P was infected with

hepatitis C. It is already proven that both D1 and D2 provided substandard blood that had been infected

with the virus of hepatitis C. 19

Case 3: P is born with severe brain damage. It is uncertainty whether the damage was an inevitable

outcome of her premature birth or caused due to the negligent treatment by Dr. D, the obstetrician. It is

established that the probability that D’s mistreatment caused the damage is 20% (or 90%).

Case 4: Dr. D negligently fails to diagnose P’s cancer. As P’s symptoms worsen, she consults another

doctor who diagnoses her cancer, but because of its advanced stage, treatment is unsuccessful, and she

dies. If Dr. D had diagnosed the cancer when initially consulted, P would have had a 20% (or 90%) chance

of successful life-saving treatment, which she lost.

Case 5: Medical failure of Dr. D to diagnose a cancer in his patient P results in an increased size of the

tumor and therefore in greater harm, but the extent of this increase in size (and consequent magnitude

of harm) due to D’s fault cannot be identified and established by P.

Medical malpractice cases involving causal uncertainty can be grouped into two categories:

those with uncertainty causes of past harm and those with indeterminate parts of harm

(Gilead, Green and Koch, 2013, pp. 12–16). Cases A, B, C and D belong to the first category, and

Case E to the latter. Whereas in cases of the former category it is uncertain “whether D’s

tortious activity was the factual cause of any part of P’s harm at all,” in cases of the second

category “it is established by the required standard of proof that D tortuously caused at least

some harm to P, and the causal uncertainty is which part of P’s harm was caused by D” (ibid.,

p. 15) and which part of it was caused by P’s own underlying medical condition.

17 For more detailed discussion on the categorization of causal uncertainty where proportional liability may apply, see generally Gilead, Green and Koch (2013). Except for Cases 1 and 2, the remaining three cases 3, 4 and 5 are directly quoted from Gilead, Green and Koch (2013, pp. 14, 16). 18 This is a hypothetical case based on Liange Zhang et al. v. Xiuzhong Luo & Luoyang Third People’s Hospital 原告张连各等诉被告罗秀忠、洛阳市第三人民医院医疗损害责任纠纷案, (Chinalawinfo) (Henan Province Song County People’s Ct. 2012) (China). In China, all doctors are employed by medical institutions such as hospitals and clinics. Individual or freelance medical practice outside medical institutions is illegal. Upon approval of the medical institution where he works, however, a doctor may “go out for consultation (外出会

诊)” – to perform diagnosis and treatment within his practicing scope at another medical institution. In case an iatrogenic injury is caused by negligence on the part of the “visiting” doctor, it is the inviting medical institution that will be the sole defendant. See art. 2 and art. 14 of the Interim Provisions for the Administration of Doctors' Going Out for Consultation 医师外出会诊管理暂行规定 (promulgated by the Ministry of Health, Dec. 16, 2004, effective Jul. 1, 2005) 2006(8) ST. COUNCIL GAZ. 26, translated in (Lawinfochina). But if the doctor provide service at the inviting hospital without the permission of his employer-hospital, his practice is illegal and he may be held liable for his negligence (art. 6 para. 1 TLL), together with the inviting hospital (art. 54 TLL). 19 Yongqiang Hu v. Jingjiang County People’s Hospital & Chinese People’s Liberation Army No. 101 Hospital 胡永强与靖江市人民医院、中国人民解放军第一ｏ一医院医疗损害责任纠纷案 , (Chinalawinfo) (Jiangsu Province Jingjiang County People’s Ct. 2014) (China).

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3.3 Solutions Based on Currently Applicable Rules

A. Indeterminate Tortfeasors and Multiple Sufficient Causes

Case 1 involves alternative causation where which potential tortfeasor actually caused the

injury is indeterminate. It is certain that P’s injury was caused by the joint activity conducted

by D1 or D2 together, but only one rather than all of them dropped the piece of gauze. This

situation is similar to the well-known “hunters case” where it is unclear which of the

negligently shooting hunters actually injured P (Gilead, Green and Koch, 2013, p. 12). The

difficulty lies more in producing sufficient evidence than in causation itself (Wang, 2009, p.

189). The new Chinese TLL provides for a clear answer to this issue. Art. 10 of the TLL reads

as follows:

Where two or more persons engage in a conduct that endangers the personal or property safety of

another person, if only the conduct of one or several of them causes harm to another person and

the specific tortfeasor can be determined, the tortfeasor shall be liable; or if the specific tortfeasor

cannot be determined, all of them shall be liable jointly and severally.

The second clause of art. 10 TLL “establishes a liability in the case of uncertain causation

involving alternative defendants” in China (Oliphant, 2012). Oliphant continued to argue that

this approach appears to be modelled on § 830(1) BGB20 and looks similar to its counterpart

in many other civil codes such as Article 6:99 of the Dutch Civil Code21, and Art. VI.-4:103 of

the DCFR.22 The only difference is whether one of the defendants can escape liability by

proving that his conduct was not the cause of the harm. According to the first clause of art. 10

TLL, one or more of the defendants can gain exoneration if and only if the true tortfeasor is

determined. This strict restriction on defendants’ right to defense is claimed to be justified on

the grounds of victim protection (Wang, 2013, p. 74). Relative to the victim, potential injurers

are assumed to be much easier to prove who is the actual tortfeasor (ibid.). If defendants could

obtain exoneration by proving his own innocence, it would be easier for all defendants to

escape liability, leaving the victim uncompensated (ibid.).

Case 2 concerns multiple sufficient causes or cumulative causation. In contrast to Case 1,

it is already proven that each of D1’s and D2’s conduct (providing infected blood) is sufficient

20 § 830(1) BGB provides: “If more than one person has caused damage by a jointly committed tort, then each of them is responsible for the damage. The same applies if it cannot be established which of several persons involved caused the damage by his act.” The English translation of the BGB (German Civil Code) is available at <http://www.gesetze-im-internet.de/englisch_bgb/index.html> (accessed November 20, 2015). 21 Article 6:99 of the Dutch Civil Code provides: “Where the damage is caused by two or more events, for each of which another person is liable, and it is ascertained that the damage originates from at least one of these events, then each of these liable persons is joint and several liable for that damage, unless a liable person proves that this specific damage is not caused by the event for which he himself is liable.” The English translation of the Dutch Civil Code is available at < http://www.dutchcivillaw.com/ > (accessed November 20, 2015). 22 Art. VI.-4:103 DCFR provides: “Where legally relevant damage may have been caused by any one or more of a number of occurrences for which different persons are accountable and it is established that the damage was caused by one of these occurrences but not which one, each person who is accountable for any of the occurrences is rebuttably presumed to have caused that damage.” The outline edition of the “Draft Common Frame of Reference (DCFR)” is available at <https://www.law.kuleuven.be/personal/mstorme/2009_02_DCFR_OutlineEdition.pdf> (accessed November 20, 2015).

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to cause the same damage (hepatitis C) independently. However, if the “but for” test is applied,

neither D1’s nor D2’s conduct can be said to be the factual cause of the harm. It is argued to be

extremely unfair if each of the Ds would escape liability just because there were other

potential tortfeasors, especially when P were not contributorily negligent (Gilead, Green and

Koch, 2013, p. 24). Case 2 can be resolved by applying art. 11 of the TLL, which reads: “Where

two or more persons commit torts respectively, causing the same harm, and each tort is

sufficient to cause the entire harm, the tortfeasors shall be liable jointly and severally.” Hence,

it is evident that the Chinese approach to multiple sufficient causes is to hold all defendants

liable in solidum.

B. Parts of P’s Harm Were Caused by Non-Tortious Factors

Under tort law, the apportionment of damages usually occurs in three scenarios: (1) between

multiple joint tortfeasors, (2) between the defendant and the plaintiff who is contributorily or

comparatively negligent, or (3) between the tortfeasor and the non-tortious factor. As to the

first scenario, art. 12 TLL provides that damages is apportioned according to each tortfeasor’s

“seriousness of liability” (责任大小) (evenly divided if it is hard to determine the seriousness

of liability). According to the currently dominant scholarly opinion, the seriousness of liability

is determined on the basis of both the degree of fault and “causative potency” (原因力) (Yang

and Liang, 2006, 2009; Yang, 2009; Wang, 2013). Causative potency is defined as the

contribution of each cause to the occurrence or expansion of an injury (ibid.). The seriousness

of liability is primarily determined by comparing the degree of fault of each tortfeasor if they

vary considerably in culpability (ibid.). If it is difficult to compare the degree of fault or in cases

where strict liability applies, the seriousness of liability will be mainly based on the

comparison of the causative potency of each cause (ibid.).

When it comes to the second scenario, art. 26 TLL provides that damages that the

defendant has to pay may be mitigated if the victim is “also at fault as to the occurrence of

harm,” and art. 27 TLL gives total exoneration to the defendant if the harm is “caused

intentionally by the victim.” The mitigation of damages is also argued to be determined by

comparing both the degree of fault and causative potency (ibid.).

Regarding the third scenario, if the non-tortious factor is outside the victim’s own scope

of influence such as a force majeure, the defendant will normally be exonerated from liability

in accordance with art. 29 TLL. However, in the event that the non-tortious factor is within the

victim’s own scope of influence such as his underlying medical condition, vulnerabilities or

predispositions, neither the new TLL nor the old GPCL has provided for any clear rules

concerning how to deal with such non-tortious factors. Case 5 exactly concerns the third

scenario. Case 5 is not associated with the problem of the “but for” test for factual causation,

since it is already established, in light of the standard of proof, that D’s conduct is the conditio

sine qua non of (at least part of) the harm. In contrast to Cases 1 to 4, Case 5 is connected with

causation in law, which deals with the question D should be held liable for what part of P’s

injury, i.e. whether and how damages should be apportioned between D and non-tortious

factors. The third scenario represented by Case 5 is one of the most controversial issues

concerning causal uncertainty in Chinese tort law.

During the period 2002-2010, the applicable rules to the resolution of medical

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malpractice claims were provided by Chapter 5 of the Regulation on the Handling of Medical

Accidents (2002)23 (hereinafter RHMA), in conjunction with the GPCL. The former provided

detailed rules concerning the measure of different types of compensation for serious

iatrogenic injury, while the later only stipulated a rough guide. Art. 49 para. 1 RHMA reads as

follows:

The following elements shall be taken into consideration in the determination of the specific sum

of compensation for a medical accident:

(1) The grade of the medical accident;

(2) The degree of liability (责任程度) of the negligent medical act in the consequences of the injury

caused by the medical accident;

(3) The relationship between the injury caused by the medical accident and the state of the original

illness.

Sub-para. (2) and sub-para. (3) together provide a basis for apportioning damages between

the negligent health care provider and the patient whose underlying medical condition also

contributes to the occurrence or expansion of the final injury. It is evident that the patient’s

underlying medical condition cannot be regarded as contributory or comparative negligence

on the part of the patient. Hence, the relationship between the negligent treatment and the

underlying condition can only be understood by comparing the potency of the two causative

factors. In practice, the degree of liability is determined by expert witnesses in the first place

and reviewed and confirmed by the court finally. According to art. 36 of the Interim Measures

for Medical Accident Technical Authentication (2002)24 (hereinafter IMMATA) and Liu (2014),

the degree of liability can be broken down into six categories as shown in Table 1.

TABLE 1 – DEGREES OF LIABILITY

Code Theoretical Coefficient (%)

Degree of Liability Recommended Compensation Range (%)

A 0 No responsibility 0 B 10 Minor responsibility 1~20 C 25 Secondary responsibility 21~40 D 50 Equal responsibility 41~70 E 75 Major responsibility 71~90 F 100 Full responsibility 91~100

The RHMA’s approach to Case 5 is argued to be applicable to other tort cases by analogy

(Zhang and Ming, 2005). In practice, before 2014, this approach was also widely adopted in

the trial of traffic accident cases. The publication of Guiding Case No. 24 (Rong v. Yongcheng

Insurance Company)25 by the Supreme People’s Court, however, marked a turning point in the

application of art. 49 para. 1 RHMA to other tort cases by analogy. In Rong v. Yongcheng

Insurance Company, the ratio decidendi made clear by the appellate court is that “if the victim

of a traffic accident was not at fault, the influence of his vulnerabilities or predispositions on

his final harm does not fall within any ground of justification that can mitigate the tortfeasor’s

compensatory liability.” Accordingly, the appellate court held the defendant fully liable for all

23 Regulation on the Handling of Medical Accidents 医疗事故处理条例 (promulgated by the St. Council, Apr. 4, 2002, effective Sep. 1, 2002) 2002(15) ST. COUNCIL GAZ. 6, translated in (Lawinfochina). 24 Interim Measures for Medical Accident Technical Authentication 医疗事故技术鉴定暂行办法 (promulgated by the Ministry of Health, Jul. 19, 2002, effective Sep. 1, 2002) 2003(15) ST. COUNCIL GAZ. 26. 25 Notice on the Publication of the Sixth Group of Guiding Cases 关于发布第六批指导性案例的通知 (promulgated by the Sup. People’s Ct., Jan. 1, 2014, effective Jan. 1, 2014) (Chinalawinfo), translated by the author.

11

harm suffered by the victim. The authority of the Guiding Cases is high, for its selection and

publication obviously indicates that the Supreme People’s Court shares the same opinion as

the appellate court. As a matter of fact, many local courts tend to refuse to adopt the RHMA’s

approach in traffic accident cases.26 Therefore, the RHMA’s approach is no longer applicable

to traffic accident cases.

Theoretically, Chapter 7 TLL has replaced Chapter 5 RHMA as far as medical malpractice

liability is concerned. Since the TLL does not provides for any provision that is equivalent to

art. 49 RHMA, it is fairly questionable whether it is still justifiable to continue to apply art. 49

RHMA to medical malpractice cases. For the time being, there is no evidence that courts have

or will apply Guiding Case No. 24 to medical malpractice cases by analogy. Therefore, in

practice, the RHMA’s approach still persists at least as far as medical malpractice is concerned.

C. The Hard Case and Lost Chances

Case 3 and Case 4 actually belong the same category of cases where “it is uncertain whether P

is a victim of a tort and whether a single D, although acting tortuously (and therefore

increasing the risk of harm), actually caused harm to anyone” (Gilead, Green and Koch, 2013,

p. 14). They are called hard cases because it is often difficult for the plaintiff to satisfy the

standard of proof in order for causation in fact to be established. Case 4 They are hard cases

also in the sense that no statute or judicial interpretation has ever provided a solution to these

cases. It is interesting to see how courts handle cases similar to Case 3 and Case 4 in practice.

3.4 Empirical Findings

In the end, a total of 592 medical cases closed for the period 2002-2013 from a single grass-

root level court (Gulou District Court) are included for this research. Three findings

concerning causation are presented as follows:

The court usually confirmed causation without giving much explanation. Of all the 280

cases, 246 reported how the causal link between the breach of duty and the damage was

established. in about 38% (n=94) of the 246 cases, the court simply stated that there were

no injuries but for the medical negligence without giving any argument. This more often

than not occurred in cases where a direct infringement was involved.

The court was most likely to apply a “proportional liability” to many cases where there was

causal uncertainty. In almost 38% (n=95) of the 246 cases, the court identified that there

was a certain degree of causality (even with a probability of less than 50%) between the

negligence and the damage, such causality could not be excluded or there was indirect

causality. The degree of causality would then be transferred into the degree of liability,

against which the final awards are measured.

26 See e.g. Baohai Ying & Lanxiu Li v. Jiaxin Xue & PICC Zhijiang Branch 尹保海、李兰修与薛家新、中国人民财产保险股份有限公司枝江支公司机动车交通事故责任纠纷案 , (Chinalawinfo) (Hubei Zhijiang County

People’s Ct. 2013) (China); Qinghao Sun v. Ansheng Tianping Insurance Company Jinan Branch 安盛天平财产保险股份有限公司济南中心支公司与孙钦浩等机动车交通事故责任纠纷案, (Chinalawinfo) (Shandong Jinan Intermediate People’s Ct. 2014) (China).

12

Confronted by causal uncertainty, the court also switched the causal link to other kinds of

injuries in some cases. Third, if there were no tangible personal injuries, the court might

establish that there were a causal connection between the negligence and the loss of

expectations or chances of being cured, survival or longer life (3.6%; n=9), pure

emotional distress (8%; n=21) or pure medical costs (2%; n=4).

Empirical evidence from the Gulou District Court demonstrates that the “high probability”

standard of proof in China is almost totally circumvented by the court in malpractice lawsuits.

On the one hand, it is found the court frequently adopts a “proportional liability” to many

malpractice cases where there was causal uncertainty. In the court’s opinion, a certain degree

of causal link P* between medical malpractice and harm done – even when the P* is as low as

10% - suffices to establish causation. Then the court would normally calculate pecuniary

damages based on the product of the P* and the amount of pecuniary losses suffered by

plaintiff-patients. On the other hand, in cases of misdiagnosis or breach of the duty of

information disclosure, if the P* is relatively low, the court would switch the causal link

between malpractice and physical harm to the causal connection between malpractice and the

loss of chances of recovery, survival or longer life, or the infliction of pure emotional distress.

There is evidence showing that this relaxation, or more appropriately, “abandonment” of the

“high probability” standard of proof in medical malpractice cases is not unique to the Gulou

District Court, but rather becomes a common practice nationwide (Liu, 2014).

Judges seldom make clear in their judicial opinions why they choose to deviate from the

“high probability” standard of proof. In an interview, however, one judge explains the rationale

behind this deviation as follows27:

Sometimes, expert testimony on causation is highly ambiguous, using wording such as “there is a

certain degree of causation” or “the possibility of the causal link cannot be excluded.” We judges

often feel confused by this wording and then we decide to use our discretion to interpret the

testimony. If the defendant grossly breaches the duty of medical care and this breach of duty may

sufficiently lead to iatrogenic injuries, we will rule that the causation is established. The word

“sufficiently” implies a standard of proof relatively lower than the “high probability” standard.

Otherwise it would be unfair on plaintiff-patients and their right to life and health could not be

protected well [italics added].

It thus seems that the deviation is caused by both the ambiguity of expert testimony and by

judges’ natural partiality to the weaker party – plaintiff-patients. Nevertheless, this deviation

is not founded on any legal basis. Whether this judicial practice persists and obtain its legal

basis in the future is still unclear.

4 An Economic Justification for Proportional Liability

Because of imperfect evidentiary information, it is not rare that there is considerable

uncertainty about whether or not the injury is iatrogenic or to what extent the injury can be

attributed to the health care provider’s negligence. There are two main approaches to the

27 Interview with An Yuanyuan, Assistant Judge, Nanjing Intermediate People’s Court, Jiangsu Province, China (Jul. 17, 2014).

13

determination of causation: the threshold probability criterion 28 and the proportional

probability criterion.

Under the threshold probability criterion (the “all-or-nothing” principle), injurers will

not be held liable for harm done unless the probability of the causation between their actions

and the accidents exceeds a given threshold (Shavell, 1987, p. 115; Scha fer and Ott, 2004, p.

209). No matter how high the threshold is set, two types of problems may arise (Shavell, 1987,

p. 115). On the one hand, if the actual likelihood of causation were systematically below the

threshold, then injurers would never be held liable for harm done. Under either strict liability

or negligence, injurers would almost be completely undeterred. As a result, they would

exercise too little care and engage too much in their activity. On the other hand, if the actual

likelihood of causation were systematically above the threshold, then injurers would always

be held liable under strict liability and would be much easier to be held liable under negligence.

Consequently, they would take more care than is optimal or reduce their activity level too

much under strict liability and would much more incentivized to take due care under

negligence.

Under the proportional probability criterion, however, parties will always be held liable

for harm done unless the probability of causation is almost zero; and the damages will amount

to the victim’s losses times the probability of causation (Shavell, 1987, p. 115; Scha fer and Ott,

2004, p. 209). Under this proportional approach, the probability of causation equals the

probability of the accident; therefore, the actual amount of damages paid by injurers is the

same with the expected accident losses (Shavell, 1987, p. 116). This implies that the total

accident costs facing injurers will remain unchanged before and after an accident and “injurers

will behave as they would in the absence of uncertainty over causation” (ibid.).

Nevertheless, the proportional approach is not immune from criticisms. One argument

against this proportional approach is that it causes too many “error costs” than the threshold

criterion does and it will be socially optimal if adjudicative “error costs” are minimized (Kaye,

1982). Shavell (1987, p. 117) refutes the argument by maintaining that it may be wrong to

adopt the minimization of error costs as the social goal, because the recommending use of the

threshold probability criterion will distort injurer’s incentives to take efficient care. Another

argument against proportional causation is that it incurs higher administrative costs than the

threshold criterion for two reasons (ibid.): first, the volume of cases would be higher and a

greater number of defendants would be involved; second, the chance of settlement would be

lower and the cost of trial would be higher.

Combining the advantages and disadvantages of proportional causation, Shavell argues

that it should be applied where there is considerable uncertainty over causation (ibid.). Since

causal uncertainty is prevalent and significant in medical malpractice cases, it may be socially

optimal to apply the proportional probability criterion to the determination of the causation

between breach of due medical care and iatrogenic injuries caused.

28 The prevalent criterion applied in common law countries is the “preponderance of the evidence” or “balances of probabilities” doctrine that sets a threshold of 50%. Civil law countries may take a higher threshold than 50%.

14

5. Conclusions

By merely reading the TLL, Oliphant (2012) concludes:

… [b]y providing a general solution only to the problem of ‘alternative’ or ‘indeterminate’

defendants and restricting itself to an all-or-nothing approach, the new Chinese Tort Liability Law

lags behind cutting-edge developments at national level, which have included the adoption of

proportional liability in cases of alternative causes, both in the indeterminate-defendant scenario

and where one of the possible risks emanates from the claimant’s sphere.

Of course, Oliphant was correct as far as only the TLL is concerned. However, if we look behind

“law on books” and search in to “law in action,” we will find how active and flexible the role

played by Chinese courts in applying legal rules is. Facing hard cases, Chinese courts

systematically adopt “proportional liability” and the doctrine of loss of a chance, with a view

to better protect patient’s rights and interests. The proportional approach to hard cases can

also be justified from the perspective of deterrence. In this respect, it is the Tort Liability Law

rather than Chinese courts that lags behind cutting-edge development in other countries.

However, it still remains to see how this judicial practice will develop in the future.

15

Appendix: Data Collection Methods

The subject jurisdiction of Gulou District is situated in the center of Nanjing, the capital city of

Jiangsu Province in the east of China. This project was designed to study retrospectively every

medical malpractice case accepted and heard by the Gulou District Court from 2002 to 2013.

Gulou District is largely an urban area, with a dense population of more than six thousand by

2011 (Gulou District Government, 2012) and an abundance of more than two hundred medical

institutions, among which are twelve secondary or tertiary hospitals such as the Jiangsu

Province Hospital, the Nanjing Drum Tower Hospital, the Nanjing Children’s Hospital and the

Zhongda Hospital of Southeast University (Qiu and Yao, 2012) . Among all the eleven districts

of Nanjing, Gulou District has the largest number and scale of medical institutions and almost

half of all medical malpractice cases in Nanjing are accepted and heard by the Gulou District

Court (Qiu and Yao, 2012).

Before 2013, court decisions in Nanjing are mostly issued on the official website of the

Nanjing Intermediate Court. I have collected a total of 162 medical malpractice cases from this

website all of which were accepted by courts in Nanjing before the end of 2014. The results

are displayed in Table 2.

At least two problems deserve attention. First, as I mentioned before, court decisions

prior to 2010 were not systematically issued on line, as evidenced by Table 1 where no case

before 2010 has been found. Second, the subject jurisdiction of Gulou did not issue its court

decisions consistently even after 2010. It follows that an analysis based on this on-line dataset

has low level of internal validity.

TABLE 2 - CASES ISSUED ON THE WEBSITE

Year of Acceptance Number of Medical Malpractice Cases Total

Gulou Court The Other Ten Trial Courts The Appellate Court

2010 0 4 0 4

2011 4 11 0 15

2012 0 37 5 42

2013 20 32 26 78

2014 0 6 17 23

Total 24 90 48 162

Then, I diverted my attention to the Gulou District Court itself. I paid a visit to the Court in July

2014, explained my research project to judges there and eventually won their approval to have

access to the court’s internal case database. Cases prior to 2002 were rarely documented. I

then searched every case involving medical injuries, medical malpractice, medical accidents

or medical service contracts and downloaded judgments, in-court mediation papers and

rulings in writing ranging from 2002 to 2013. I screened the downloaded case documents one

by one with a view to excluding those that are not relevant to disputes over medical

malpractice or that lack essential information.29 In the end, a total of 592 medical cases are

29 Case documents lacking less important information such as the age, gender or places of residence of litigants are still kept for other analyses.

16

included for this research. Each case was given a unique code beginning with “T” (Trial) for

convenience. By the way, I also went to the Nanjing Intermediate Court (the appellate court)

for the purpose of obtaining data on the appeals. This trip was, however, unsuccessful. Judges

there denied my request to get access to their case database out of concerns for privacy. Lack

of complete data on the appeals produces one of the major limitations of my study.

Nevertheless, the case documents amassed for my research project constitute one of the

largest databases of medical cases from a single district-level jurisdiction gathered to this day.

17

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