ESSAY 

LAW·IN THE SHADOW OF VIOLENCE: CAN LAW HELP TO 
IMPROVE DOCTOR-PATIENT TRUST IN CHINA?* 

Benjamin L. Liebmant 

Can law help to address the lack of trust in doctor-patient 
relationships in China? This essay examines the role that law, on the 
books and in practice, has played in the rise and resolution of patientL 
doctor disputes and conflict in China. Law has generally played a 
secondary role in medical disputes: most patient claims never make it to 
court, and there is little evidence that negotiated outcomes are influenced 
by legal standards. Yet a legal framework weighted in favor of hospitals 
and doctors almost certainly exacerbated doctor-patient conflict in the 
2000s. Patients facing legal procedures and rules that appeared to offer 
little hope of redress took their complaints to the streets. The threat of 
protest and violence also influenced how courts handled the cases that 
ended up in court, with courts creating new legal standards or ignoring 
formal law in order to appease plaintiffs. The result was lack of trust in 
formal law and the legal process from both plaintiffs and defendants. 

Changes to written law and in court practice since 2010 have lessened 
some of the perceived unfairness of the legal framework for patients. 
Nevertheless, lawyers both for plaintiffs and for hospitals continue to 
argue that the system is unfair. Limited evidence suggests that the legal 
system does a poor job of separating valid from invalid claims and of 
incentivizing hospitals to reduce malpractice. The few steps taken to date 
by local and national authorities to use law to address rising doctor-
patient conflict have largely focused on addressing the problem of protest, 
not the lack of trust between patients and doctors or the extent of 
malpractice. 

• Prepared for "Rebuilding Patient-Physician Trust in China Summit," Harvard 
Shanghai Center , October 10- 11, 2015. 

t Robert L. Lieff Professor of Law and Director, Center for Chinese Legal Studies, 
Columbia Law School. 

1 I use "patient'' to refer to patients and to their families. Many lawsuits and protests are 
brought by family memb ers of patients , in particular in cases in which the patient is 
deceased. 

113 



114 COLUMBIA JOURNAL OFASIAN LAW [Vol. 30:113 

Part I of this essay provides a brief overview of the problem of conflict 
arising from patient-doctor disputes. Part II examines the formal legal 
framework governing medical disputes in China, i.e. the law on the books. 
Part III describes the effect (or lack thereof) of formal law on actual 
practice, on the streets, and in courtrooms, with a particular focus on 
developments since China's Tort Liability Law came into effect in 2010. 
Part IV concludes by arguing that law has played and will likely continue 
to play a minor role in reducing patient-hospital conflict. In the short 
term, the best hope may be that the legal framework governing patient-
hospital disputes does not exacerbate the existing dynamics of distrust. 

This essay updates my prior work on medical dispute resolution in 
China, examining developments since 2010 and focusing in greater detail 
on the question of how China's legal framework might address the 
dynamics of distrust that characterize doctor-patient relationships in 
China. 2 This essay argues that despite steps taken in formal law to 
ameliorate some of the perceived unfairness of the legal framework 
governing medical disputes, little has changed on the ground. Those 
looking to law to play a role in diffusing doctor-patient conflict in China 
are likely to be disappointed. The legal system continues primarily to 
reflect, rather than to address, the lack of trust in Party-state institutions 
that has been a major contributor to rising unrest in China. Targeted 
legal reforms could help modestly , and this essay suggests a need to shift 
the focus of legal debate in China from dispute resolution and protest to 
steps that might improve the quality of and patients' confidence in the 
medical system. 

I. THE PROBLEM 

The extent and intensity of protest, often violent, by patients and 
their families against doctors and hospitals have been extensively 
discussed in both the media and in academic accounts.a Major incidents 
of violence against doctors attract extensive media attention , leading one 
official report to describe medical disputes as "bloody conflicts concerning 
the accumulation of power in society." 4 Less extreme forms of protest 
attract less coverage but are even more common and may be extremely 
disruptive to hospitals . Protest has become a routine tool for patients 
seeking compensation from hospitals, both in instances of clear 

2 See Benjamin L. Liebman, Malpractice Mobs: Medical Dispute Resolution in China 113 
?OLUM. ~- REV._ 181 ~2013). !his ~ssay draws on Malpractice Mobs for backgr~und 
information, at t_1mes without direct citation. This essay also draws on informal background 
conversations with a range of legal and medical professionals in China. 

3 Id. at 228-229. 
4 Li Qiumeng <*tiCi!Ji), _Zhengxie Weiyuan: Ying Jiada Daji Yinao Weihu Shehui Wending 

(i5ctl}~~: bY:lm::ktrm~f,liJtftlr'tl:~~~) [CPPCC Member: Hospital Protests Ought to Be 
Cracked Down On with Greater Force to Maintain Social Stability] (Mar 12 20ll) 
http://news.l63.com/ll/0312/02/6UTN67RC00014AED.html. . ' ' 



2016] DOCTOR-PATIENT TRUST IN CHINA 115 

negligence and in cases of adverse outcomes. 5 As one hospital official 
commented, "if a living person goes in and a dead person comes out, then 
the family will protest. "6 

Frequent media accounts of negligence by and the indifference of 
doctors and hospital staff have led to the popular perception that 
malpractice, often egregious, is common. Lack of empirical work makes 
assessing the frequency of protest, violence, and negligence by doctors 
difficult; 7 some recent media accounts suggest that the frequency of 
serious cases of yina,o (literally "medical chaos," the term most commonly 
used to describe patient protest) may be declining. 8 In my interactions 
with doctors, hospital officials, lawyers, and academics there has been 
near consensus that violence against medical staff and egregious forms of 
malpractice are common. The causes of the volume of protest and the 
incidence of error are complex. But it is clear that the rise in disputes and 
the frequency of violence in such disputes are products of a number of 
factors , including the marketization and cost of health care, the 
compensation structure for doctors, reliance on the sale of drugs by 
hospitals and doctors to generate income, the difficulty of obtaining 
appointments at hospitals, the short time doctors spend with patients, 
delays in treatment, quality of care , corruption, lack of insurance for 
catastrophic illness, absence of a robust social safety network, and a 
general lack of trust in state institutions. 

II. LEGAL FRAMEWORK 

As medical disputes, protests, and violence surged in China in the 
2000s, law often appeared to play a secondary role to action on the streets 
and in hospital hallways. I am not aware of any studies that have 

Patients are not alone in protesting. Media accounts have also detailed protests by 
doctors and nurses in response to the violence. Shan Chungang (.qif!t!~JJ), Henao Luoyang 
Xiang Ganbu Feifa Jujin 4 Ming Hushi Bei Tingzhi Juliu (/iiIJ.wmJ!BJ-=fffl!'11:~llil~ 4 ;g~ J:: 
;j/f~JIRffiJ!il) [Township Cadres in Luoyang, Henan, Were Removed from Office and Detained 
for Illegally Detaining Four Nurses] XlNHUA WANG (lfr$1<iq) [XINHUA NET], (Nov. 22, 2007), 
http: //news. xinhuanet.com/legal/2007-ll/22/content _712380l.htm; Qiu Shuo ( ;fX li9i ), 
Nanping Shi Diyi Yiyuan Guanyu '6.21' Yihuan Jiuf en Yinfa Bufen Yiwu Renyuan 
Shangfang Jingguo de Baogao (m-'f'-m?f,- ~~ ~f "6.21"~.\M4~5I lit:i'lll~l2'f~ Affi_tiJm 
:i:t (/(] ffl i!;') [Nanping City No. 1 Hospital 's Report on the Protest of Medical Workers 
Following the June 21 Hospital-Patient Dispute], Tianya Shequ (~ill t± 18:) [TIANYA 
COMMUNITY] (June 23, 2009) , http: l/www.tianya.cn/publicforum/contentJfree/1/160395 
6.shtm1. 

a Liebman, supra note 2, at 233. 
1 The frequency of malpractice is of course a highly contested question even in countries 

such as the United States with extensive empirical scholarship on the topic. See A. Russel 
Localio et al., Relation Between Malpracti ce Claims and Adverse Events Due to Negligence-
Results of the Har vard Medical Study Ill, 324 N. ENG. J. MED. 245, 245 (1991). 

s Such reports focus on specific local jurisdictions and appear to be largely official local 
media praising the efforts of local authorities. Such reports thus should be treated with 
skep ti cism. They do, however , reflect the pres sure local authorities have come under to 
reduce (and to reduce reports on) incidents of doctor-patient conflict in recent years. 



116 COLUMBIA JOURNAL OF ASIAJV LAW [Vol. 30:113 

examined the percentage of cases resolved informally or through the 
courts . Hospital officials and lawyers estimate that nearly ninety percent 
of patient-hospital disputes are resolved before they get to the courts .9 

Nevertheless, judges also reported medical disputes increasing beginning 
in the early 2000s and taking up a greater amount of judges' time, largely 
due to the need to manage such cases to prevent escalation and unre:;t. 

Even if most disputes are not resolved through formal law or with 
reference to legal standards, it is clear that the legal framework 
governing medical disputes in China contributed to the ri$e of patient-
doctor conflict. Throughout the 2000s , the law governing medical disputes 
was weighted against patients in ways that undermined trust in the 
medical and dispute resolution systems. Although the legal framework 
has shifted since 2010, ambiguities and problems remain, and patients 
and doctors continue to view the current system as profoundly unfair. 

From 2002 to 2010 , medical disputes in China were primarily 
governed by the 2002 Regulations on Handling Medical Accidents. is:,ued 
by China's State Council (the "Regulations"). 10 Under the Regulations. a 
plaintiff seeking compensation was required to show that the defendant 11 

was responsible for a "medical accident," defined as an error causing 
personal injury to a patient that resulted from medical personnel 
negligently violating relevant laws , administrative regulations. rules. 
standards governing medi cal care, or ordinary practice. 12 Cases involving 
"medical accidents" were covered by the Regulations; those not involving 
a "medical accident" were not covere d by the Regulations. 

Two aspects of the Regulations attracted the most controveri;y. First, 
under the Regulations, damages awarded to plaintiffs in medical accident 
cases were low - significantly lower than in other tort cases. This was 
because the Regulations did not permit recovery of compensation for 
death in cases in which medical accidents led to a patient's death. In 
contrast, other tort claims were governed by the Supreme People's Court's 
(SPC's) 2003 interpretation on damages in personal injury cases,13 which 

9 
This figure is broadly in line with settlement rates elsewhere. As discu. sed below, what 

appears to be unusual in China is the lega l framework's lack of impact on sett leme nt 
negotiations and deci sio ns. 

1
~ Y iliao Shigu Cb u Ii Tiaol i (~ fi '3J i\Hl:111!~ {91J) [Regulations on the Dispos1 tion of Medical 

Accidents] (promulgated by the St. Council., Feb. 20, 2002, effective Sept. I 2002), ST 
COUNCIL GAZ., May 10, 2002 , at 6, available at http://www.gov.cn/english/official/2006-08/0l/content_l8999.htm. 

11
_ T~e _overwhel~in~ ~ajority of defendants are hospitals. Chin ese law does not provid e 

for ~d1V1dual_ tort ~ab~t)'. against doctors . Individuals are generally named as defendants 
o~Jy m ca~es 10 which 1~d1v1duals operate medical clinics outside of hospitals (often village 
climes) or m cases allegmg the illegal practi ce of medicine. Hospitals often require that staff 
pa~2 a portio~ of any settl~men~ ~r court a"'.ard resulting from their negligence. 

13 Regulations on the D1spos1tion ~f~ed1cal Ac~_idents, supra note 10, art. 2. 
Guanyu Shenli Renshen Sunha1 _Pe,1chang AnJtan Shiyo ng Falii Ruogan Wentt de Jieshi 

( .:X: T lJ1 _3111 A~ f.6l 'i!f ~tf 14-fil! ffl rt Ut :a' -F f',;J Eli ftif. 'J) [Interpretation of Some l!<sue!, 
Concerning the Application of Law in the Trial of Cases 00 c t r p 1 

ompensa 100 1or ersona 



2016] DOCTOR-PATIENT TRUST IN CHINA 117 

provided for a death compensation award of twenty times the average 
local income for deaths resulting from tortious actions. In practice, this 
meant that plaintiffs in medical cases who prevailed in court often 
received hundreds of thousands of yuan less than plaintiffs in other tort 
cases . 

Second, under the Regulations, all determinations regarding whether 
or not a "medical error" had occurred were required to be made by medical 
review boards established by local medical associations. Courts were 
required to defer to these determinations .14 The use of medical review 
boards was designed to ensure that medical professionals resolved 
questions relating to the standard of care or causation. In practice, 
however, the medical review boards were widely viewed as protecting 
doctors and hospitals by finding no error or by finding any error to be 
minor. Local doctors judged their peers, hearings were brief, decisions 
were generally short and lacked reasoning, and review board members 
did not appear in court. There has been extensive debate (and little 
empirical evidence) on the fairness of medical review boards . Hospitals 
and doctors argue that the boards are essential to ensuring fairness to 
hospitals and doctors and that only medical professionals are capable of 
making determinations based on the standard of care. 

Actual outcomes were likely less important than appearances. The 
use of local doctors to determine the fault of other local doctors in a 
process that lacked transparency virtually guaranteed that patients 
would view outcomes as biased and unfair. Patients reacted by seeking 
other mechanisms to protect their interests . Perceiving little chance of 
prevailing before medical review boards and a legal system that paid far 
less for deaths due to medical negligence than for other tort claims, many 
plaintiffs took their claims to the streets. 

Plaintiffs and their lawyers also responded to the perceived 
unfairness of the medical review boards by seeking to avoid the 
Regulations entirely. A second track of litigation developed. Litigants 
frequently sued hospitals and doctors for ordinary negligence (not for a 
"medical accident"), relying on China's General Principles of the Civil 
Law and the SPC's Interpretation. In such cases, determinations 
regarding whether defendant conduct was negligent were made by 
judicial inspection agencies, quasi-private entities- 5 retained by parties to 
the litigation. Damages in such cases were not limited by the restrictions 
in the Regulations. Hospitals, doctors, and their lawyers condemned this 
practice as illegal and denounced judicial inspection institutions as 
lacking expertise (most determinations by judicial inspection agencies 

Injury] (promulgated by the Sup. People's Ct., Dec. 26, 2003, effective May 1, 2004), 2004 
SUP. PEOPLE 'S CT. GAZ. 2, at 3. 

14 Regulations on the Disposition of Medical Accidents, supra note 10. 
15 Judicial inspection agencies were originally established under local courts. Judicial 

inspection organizations were separated from the courts in 2005. Although registered with 
local justice departments and often affiliated with public institutions such as universities , 
most judicial inspection agencies operate largely as commercial entities. 



118 COLUMBIA JOURNAL OF AsIAN LAW [Vol. 30:113 

are made by individuals trained as medical lawyers or in forensics, not 
doctors with experience treating patients. ) Some courts permitted the 
practice, in particular for minor claims or claims resulting from 
allegations of illegal conduct by doctors or hospitals. Other courts, 
however, adopted more defendant-friendly practices and required all but 
the most minor claims to be brought to medical review board s. Alth ough 
the SPC indicated that it authorized this second track of medical dispute 
resolution, neither the SPC nor China's legislature directly addressed the 
tension between the litigation under the Regulations and litig at ion 
brought pursuant to the General Principles of Civil Law and the SPC's 
interpretation. 

China enacted a comprehensive Tort Liability Law in 2009, which 
became effective in 2010. 16 The Tort Law changed the law governing 
medical disputes in three major ways. 17 First , the Tort Law standardized 
damage awards across tort cases, meaning that plaintiff s in medical 
disputes may receive damages for wrongful death , as in other tort cases. 18 

Second, the Tort Law shifted the burden of proof in most cases from 
defendants to plaintiffs. 19 Third , the law created an explicit cause of 
action, with fault assumed and the burden of proof on defendants, for any 
illegal conduct or violation of treatment standards by ho spitals, doctors, 
or hospital staff or any alteration or concealment of m edical r ecords. 

The Tort Law eliminated controversy over whether plaintiffs can 
recover damages for wrongful death. The law also eliminated the 
distinction between cases alleging a "medical accident" and those alleging 

1sz honghua Renmin Gonghe Guo Qinquan Zeren Fa (<1'$<.A.l\':}H~ll'!il~:&~ff~) [Tort 
Liability Law of the People's Rep ubli c of China] (promulgated by the Standing Comm. Nat'l 
People's Cong., Dec. 26, 2009, effective July 1, 2010) 2010 STANDING COMM. NAT'LPEOPLE'S 
CONG. GAZ. 4, available at http: //www.gov.cn/flfg/2009-l2/26/content_l497435.htm. 

17 The Tort Law did not specifically revoke the Regulations , and the Regulations remain 
in place. Aspects of the Regulations that are in conflic t with th e Tort Law are understood to 
be no longer effective. Other portion s of the Regulations, in particular those governing 
administrative sanctions against hospitals and doctors , remain valid. As discussed below , 
there is debate about whether the provisions of the Regulations governing medical review 
boards remain effect ive. 

18 At the time the Tort Law became effective, some spec ulat ed as to whether the law 
meant that the provisions on damag es in the Regulations were no longer effective. In 
practice , howev er , it appears that courts routinely award death compe nsatio n in medical 
disputes and there is no longer any controversy about the issue. Hospitals and their lawyers 
are not happy with this outcome, arguing that in many cases it is unfair to require 
defendants to pay the full death compe nsatio n amount. Such criticism appears to be 
primarily based on a belief that courts are too willing to award full death compensation 
damages in cases in which causation between medic a l neglig ence and the death is either 
unclear or only partial . The criticism is thus not that defendants should be immune from 
liability but rather is that the existence of death compensation makes it too easy for courts 
to hold defendants fully liabl e. 

19 Prior to the passage of the Tort Law , the SPC had placed the burden of proof on 
defendants, but the fact that determinations of fault were made by medical review boards 
served to lessen the effect of the burd en of proof. See Zuigao Renmin Fayuan Guanyu Minshi 
Susong Zhengju de R~ogan Guiding_(liU!i l\':$Wi'tiiE:t\l: £!(J~-'f~~) [Provisions 
of the ~upreme Peoples Court on Evidence m Civil Litigation] (promulgated by the Supreme 
Peoples Court, Dec. 21, 2001, effective Apr. 1, 2002) , art. 4, 2001 FA SHI 33. 



2016) DOCTOR-PATIENT TRUST IN CHINA 119 

medical negligence. In other areas, however, the Tort Law failed to 
clarify or unify practice. Most notably, the Tort Law did not address 
whether inspections by medical association medical review boards should 
continue to be a prerequisite to suits against hospitals or whether 
plaintiffs in medical cases may rely on inspections carried out by judicial 
inspection organizations. 

At the time the Tort Law was passed, it was widely expected that the 
Supreme People's Court would resolve many ambiguities in the law 
through a judicial interpretation. The SPC circulated a draft judicial 
interpretation on medical cases in 2011 that would have allowed 
inspections by either judicial inspection organizations or by medical 
review boards. Six years later, however, the interpretation has not been 
adopted, most likely because of continuing debate and lobbying, in 
particular by hospitals against the use of judicial inspections. Lawyers 
involved in medical disputes also report uncertainty regarding whether 
inspections should be carried out and overseen by the Ministry of Justice 
(which oversees judicial inspection organizations) or the Ministry of 
Health (which oversee~ medical associations). Debate also exists 
regarding whether inspections should be issued in the name of individual 
doctors taking part in the inspection or in the name of the medical 
association alone and regarding whether inspections should be viewed as 
a for-fee service or as a professional obligation of doctors. 

Courts have not waited for an SPC interpretation to alter their 
practices. Courts in a number of provinces and provincial-level 
municipalities, including Beijing and Henan, now allow plaintiffs to 
choose whether to have inspections carried out by judicial inspection 
institutions or by medical associations. 20 Yet the practice is not uniform, 
with provinces adopting a wide range of practices. 21 Shanghai, Zhejiang, 
and Jiangsu continue to require that medical association review boards 
conduct inspections in medical cases unless both the plaintiff and the 
defendant agree to use a judicial inspection. 22 Other jurisdictions have 
adopted measures in between the permissive rules of Beijing and the 
stricter standards imposed in Shanghai. In Guangdong, plaintiffs are 

20 Beijingshi Gaoji Renmin Fayuan Guanyu Yinfa "Beijingshi Gaoji Renmin Fayuan 
Guanyu Shenli Yiliao Sunhai Peichang Jiufen Anjian Ruogan Wenti de Zhidao Yijian 
(Shoong)" de Tongzhi (~t)i{r!f~~.A.~~~:.X:-t-En£ <~t)i{r1'i~ffl.A.~~ ~*-f-'ifl'Jllll2sfi!M~ 
Ja~m~~#*-'ffiiJH!1¥rtlf~:t:m (~fr) ) a<JJm1;!J) [Notice of the Beijing High People's 
Court on the Issuance of "Beijing High People's Court Guiding Views (for Trial 
Implementation) on Some Questions Concerning the Trying of Medical Injury 
Compensatio n Cases"] (promulgated by the Beijing High People 's Ct., Nov. 18, 2010, 
effective Nov. 18, 2010), JING GAOFA 2010, No. 400, available at http://www.pkulaw.cn 
/fulltext_form.aspx?Gi d= l 7241603&Db=lar. 

21 Yang Fan (~~) & Wang Guijun (I:!ll'ft), Yiliao Qinquan Anjian Difang Zhidao 
Wenjian Jianding Guifan Yanjiu (12ffi-8H~*#~1fr.l-'it-Jt#~J:Enl!ffili/f'1'.:) [Research on 
Local Guiding Documents Regulating Inspections in Medical Tort Cases], 23 Zhengju Kexue 
(iifl,l!l#~) (EVIDENCE SCIENCE], no. 2, Apr. 2015, at 209. 

22 Jd. 



120 COLUMBIA J OURNAL OF ASIAN LAW [Vol. 30:113 

permitted to use medical revi ew boards or judicial inspection 
organizations. But court rul es impo se specific re~~emen~ on ~he 
experience and qualifications of persons taking part m mspect10ns, with 
stricter standards applying to re-in spections than to initial inspections, 
apparently to ensure that only a small number of judicial inspection 
organizations with a relativ ely high lev el of expertise are able to conduct 
inspections in medical disputes. 23 Fuji an reportedly has an internal 
notice that allows the u se of judicial inspections but requires that two 
lawyers with "relevant experience" particip ate . In Hubei, high court rules 
require the use of medical association medical review boards, but lawyers 
say that in practice local courts ma y allow them to use judicial inspections 
to support claims alleging negligen ce by doctors and hospitals. 24 

Hospital officials and their law ye r s have expressed concern about the 
increased use of judicial inspection organizations. Hospitals view the 
organizations and the medical law yers and forensics experts who 
generally carry out the inspections as lacking the knowledge required to 
assess causation in specialized areas of practice. As one hospital lawyer 
argued in conversation , judicial inspection agency staff are trained to 
make disability determinations and are larg ely unfamiliar with other 
areas of medicine. Judicial in spection entiti es also continue to operate as 
for-profit entities , making it unlik ely that they will rule against the party 
that retains them. Courts in theory could refuse to accept the decision of 
a judicial inspection agency (or could ord er a second inspection). Lawyers 
say, however, that it is almost unheard of for a court to refuse to accept 
or to overturn a judicial inspection deci sion. It is unclear whether 
replacing a system widely under stood as unfair to patients with one 
widely perceived as biased in favor of pati ents has helped to alleviate 
patient distrust in the legal framework governing medical disputes. One 
plaintiffs' lawyer commented that the legal framework governing medical 
disputes remains one of "legal chaos."25 

Guangdong Sheng G~oji Renmin Fay uan Guanyu Yinfa "Guang dong Fayuan Sifa 
:e1tuo R:ux~an Z~~~nye J1~ou (20_15 Nian _){-iuding ) de Jiben Tiaojian" de Tongzhi (1 h;la 
1'-IJ~At's.i'li:l\1c~-H111it <i*i'li:ll.,tii'li't~H:A.i2i.1til:'.~nftl c2015 ~~-ii> (l<J¥;;t;:~{t (J(Jiffi~) 
[Notice of th e Guangdong Province Hi gh People's Court on the Issuance of the "Basic 
Requirements for the Judic _ial Entrustment a nd Selection of Expert Institutions by 
Gu

2
~ngdong Courts (2015 Revi s ion )], Yu~ ~AOFA, No. 114 , April 15, 2015. 

Because the Tort Law abohsh ed a di stmct ion between cases 11 · d ' al ·d t . . . a eging me 1c acCI en s 
and those alleging medical neglig ence medi cal rev 1·e,., b d · · · di · h . . . , .. oar s in Juns ctions sue as 
Shanghai now make determmat10n s regarding medical 1· · d.cal . . . neg igence, not Just me 1 
accidents. Yet 1t 1s uncl ear whether review board staff h fi d h h h · . ave ocuse on w et er t ere lS a 
difference between the standards for finding faul t under th Regulat' d d h T Law. e ions an un er t e ort 

2b The Tort Law has also resulted in new sour ces of perce· d -" · d " . . . 1ve u[ll airness an new ,or ms 
of creative lawyering. The shift of the burden of proof t l · tiffs h b d · d b 

I · 'ffs' 1 h O P a1n as een ecne y p aint1 awyers , w o note the difficulti es they face in obta' · ' d · 1 k 
f d . . d • . imng eVI ence given the ac · 

o 1scovery proce ures m China. In re sponse lawye s h h • • · 
b f 

. £ . . , r ave soug t to bnng an mcreasmg 
num er o sUits or illega l hospit al actions a nd a lte t· di 
burden of proof is on defendants. ra wns to me cal records, where the 



2016] D OCTOR- PATI ENT TRUST IN CHINA 121 

China's Tort Law was not specifically designed to address problems 
of prot est and violence in medical dispute s, although some involved in the 
drafting proces s did aim to create a system that was fairer to both 
plaintiffs and h ospit al s. Other rules and regulations adopted since 2010 
have attempted to address the problem of protest and violence directly. 
Such regulations do so by seeking to restrict the ability of hospitals to 
engage in settleme nt talks with aggrieved patients or by treating patient 
protest as a pr oblem oflaw and order. 

Local au thorities in a numb er of jurisdictions have attempted to 
reduce the pressure on hospitals to settle medical disputes by enacting 
rules mandating mediation of patient grievances. Under such rules, all 
claims exceeding a specified amount , generally either 10,000 or 20 ,000 
yuan, must be referred to a mediation entity established under the local 
health bureau. Mediators are generally retired health bureau personnel 
with some medical background. The main goal of such rules appears to 
be to restrict th e abili ty of hospitals to settle and thus to reduce protest: 
if h osp it als are banned from settling large cases then patients and family 
members will hav e le ss incentive to protest at ho spitals. Some lawyers 
suggest that imposing mandatory mediation may also help to diffuse 
protest by prolonging the settlement process. 

There is little ev id ence on whether such restrictions are having an 
effect on hospitals or patients. 26 There is no sanction for hospitals that 
decide to set tl e disputes above the stipulated amount and no enforcement 
mechanism to compe l patients or their families to go to mediation. 27 One 
Beijing hospital official sa id that approximately 70 percent of patient 
grievances are now referred to mediation entities, but added that 
convincing patients to use mediat ion still r equires exte nsiv e effort. 
Mediation may be effective for low-value disputes but appears largely 
ineffective for m ore se riou s claims. Some lawyers who represent plaintiffs 
comment that mediation en titie s are mor e fair than medical association 
r eview boards . Nevertheless, the neutrality of mediation organizations is 
questionable. Loca l health authorities (who also oversee hospitals ) 
establish and oversee m edic al mediation entities, and, in at least some 
provinces , the m edia tion committee s are funded by hospital insurers. 

National authorities have also sought to increase sanctions against 
protestors. In April 2014, five central government department s issued a 
n otice on medical disputes. 28 As with similar local r egulations that 

2G Some observers have praised the mediation entities for resolving a large number of 
disputes , but do so based primarily on the tota l numb er of cases und ergoing mediation. 
Existing academic st udi es exam ine the types of claims leading to grievances, not patient 
confidence in the outcomes or the amounts pa id through med iati on compa red to those paid 
through litigation or pri vate settlement. . . . . 

r, This is Likely beca use there is no legal basis to mandate mediati on of medical disp utes. 
Health bureaus may be able to bar hospital s from settling disputes, but th ey cannot 
mandate that patients engage in mediation pri or to going to court. 

28 Wu Bumen Guanyu Yifa Chengc hu Sheyi Weifa Fa nzui Weihu Zhengchang Yiliao Shi 
Zhix u de Yijian (1i ll9l fJ :X:-=f-ltat~~i/t~i:n~ffl!flH!ftlr' iE'li\12iffu-tfkff (l{J:f:J4!.) [Opinion of 



122 COLUMBIA JO URNAL OF ASIAN LAW [Vol. 30:113 

preceded the national notice , the rules can be read primarily as describing 
the forms of protest and violence that hospitals have faced in r ece nt years. 
The rules bar destroying hospital property ; beating or threat ening 
doctors; insulting or threatening medical staff; setting up funeral shrin es 
at hospitals; blocking hospital entrances; bringing explosives, hazardous 
materials, or weapons to hospitals; and leaving the bodies of deceased 
patients at hospitals. 29 

Revisions to China 's Criminal Law in August 2015 criminalized 
protest against hospitals .30 Article 290 of the Criminal Law provides for a 
criminal sentence of three to seven years for anyone leading a mob to 
cause serious disruption of social order. 31 The revision added obstructing 
a hospital's operation to the list of examples of conduct giving rise to 
criminal sanctions under the provision. Commentators have noted that 
the revision is intended to criminalize serious cases of medical protest. 32 

The legal response to protest has been largely reactive, seeking to 
constrain violence and protest. Such steps do appear to be having some 
effect. Doctors and hospitals report modest improvement in the handling 
of patient protests. Hospital officials say that the situation is improving, 
because of better coordination with the police and the permanent 
stationing of police at many hospitals and because of improved internal 

Five Departments on Sanctioning According to Law Illegal Criminal Conduct Relating to 
Medical Care in Order to Protect Regular and Timely Medical Procedures] (promulgated by 
the Sup. Peoples' Court , Sup. People 's Procuratorate, Pub. Sec. Bureau, Ministry of Justice , 
and the Nat'! Health and Family Planning Comm., Apr. 22, 2014), available at 
http://www.spp.gov .cn/flfg/20l404/t20140428_ 713 7 4.shtml. 

29 The notice appears to be an attempt to signal to the police that they should take medical 
protests seriously and that hospital s and police should improv e coordination to prevent 
major incidents. The notice also calls for better service by hospital s, improved reporting of 
disputes, and increased legal services for patient s. Id. 

30 Zhonghua Renmin Gongheguo Xingfa Xiuzheng'an (Jiu) ('P$Ali;; ~;f!lpil'ff!J~~iE;t 
(;h,)) [Criminal Law Amendment IX of the People 's Republic of China] (promulgated by the 
Standing Comm. Nat'l People's Cong. , Aug. 29, 2015, effective Nov. 1, 2015), amend. 31, 
2005 STANDING COMM. NAT'L PEOPLE'S CONG. GAZ. 5; Xingfa XiuZheng'an Tongguo "Yinao" 
Zhong Ru Xing (Jfil~f~iE~liH:t "!2if,!jj" ~A'ff!J) [Criminal Law Amendments Finally 
Criminalize "Medical Chaos'1, Beijing Xiehe Yiyuan (~l:; JlUIJ-;f!l ~) [PEKING UNION 
MEDICAL CENTER HOSPITAL] (May 5, 2016), http://www.pumch.cn/ltem/14605.aspx. 

31 Zhonghua Renmin Gongheguo Xingfa ('t1$Ali;;~;f!l~:lflJ~) [Criminal Law of the 
People's Republic of China] (promulgated by the Standing Comm. Nat'l People's Cong., Mar. 
14, 1997, rev'd Aug. 29, 2015, effective Nov. 1, 2015) , art. 290. 

32 Bai Jianfeng (Sjtl~), Renmin Ribao Bu Tu Bu Kuai: Shangyi Ruyi Shi Shehui Zhichi 
(A a': E331i ::f 11± ::f *: 05 l2i 1ij 12i¾ l± :t.J{[t) [People 's Daily Getting it off One's Chest: Harming 
Doctors and Insulting Doctors are the Shame of Society], Renmin Ribao (Ali;; El j'(l) [PEOPLE'S 
DAILY] (July 10, 2015), http://opinion.people.com.cn/n/2015 /0710 /cl0 03-27282054 .htm1. It 
appears that even before the revision of the Criminal Law the Supreme People's 
Procuratorate (SPP) had begun to emphasize serious attacks on medical staff. The SPP 
reported 347 prosecutions nationwide for attacks on medical staff in 2014. Zui Gao Jian: 
Quanguo Yinian Banli Wenling Shayi Deng Yanzhong Sheyi Fanzui 347 Ren (i'ililli* : ~Ii 
-1¥ 1.1-ll!l~llit;i'f;l2i~F.!1.W,~m1W 347 A) [SPP: 347 Cases Brought in One Year for Serious 
Criminal Actions Relating to Medical Care Such as the Wenling Doctor Murder] Zhongguo 
Xmwen Wang ('F liji!Jjj ~) [CHINA NEWS] (June, 24, 2015), http: //www.c hinanew s.com/ 
gn/2015/06-24/736244 l .shtml. 



2016] DOCTOR-PATIENT TRUST IN CHINA 123 

hospital procedures for managing patient grievances . The role of 
professional protestors in medical disputes appears to be decreasing, at 
least in major cities. But little attention has been paid to steps that might 
help to prevent disputes or the escalation of disputes in the first place. 
Continuing media coverage of assaults on doctors suggests that the 
problem remains extensive and deep-rooted. 33 

III. ON THE STREETS AND IN THE COURTROOM 

The discussion above suggests that the formal legal framework has 
contributed to mistrust between doctors and patients. Yet focusing on 
written law misses much of the complexity of how medical disputes are 
actually resolved. This section highlights four characteristics of medical 
disputes in China that are not captured by examining formal legal 
provisions. Evidence suggests that while the "shadow of the law" has 
limited effect on hospital-patient disputes, the shadow of violence has a 
significant effect on hospitals and on courts. 34 The threat of protest keeps 
many cases out of court and casts a shadow over how courts handle cases 
that do wind up in the formal legal system. 

First, although the Regulations in theory provided hospitals with a 
legal framework in which payouts for malpractice claims were low, in 
practice the legal standards provided little or minimal protection to 
hospitals. Hospitals reported routinely settling cases for more than they 
would be required to pay if they lost the same case in court. Whether 
hospitals faced a protest or threat of protest was generally the most 
important factor influencing the resolution of medical disputes. 
Settlements were and are often made with little regard to legal provisions 
and often exceeded the amounts that would be payable in court. Faced 
with protestors, most hospitals paid, regardless of whether they thought 
the claim had merits. This was true in particular before China's Tort 
Liability Law came into force in 2010 . As damage awards in court have 
risen since 2010, the dynamic may be less pronounced. 35 

The willingness of hospitals to pay in excess of legally stipulated 
amounts reflects the fact that the financial impact of settlements and 
court judgments on major hospitals remains relatively minor. Hospitals 
are reluctant to reveal information regarding settlements and judgments 
against them. Informal conversations make clear that the financial 
impact of disputes is often a secondary concern for hospitals. Hospitals 

33 See, e.g., Chris Buckley, A Danger for Doctors in China: Patients' Angry Relatives, N.Y. 
TIMES (May 18, 2016) , http: //www .nytimes.com/2016/05/19/world/asia/china-attacks-doctor 
s-hospitals.htm.l?_r=0. 

s , 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 140 (Phillips Bradley ed ., Henry 
Reeve trans., Alfred A. Knopf 1946) (1835). 

M Some hospitals report that the amount they are willing to offer in settlement depends 
on the court in which patients are likely to file a claim. One Beijing hospital official noted 
that some district courts in Beijing are understood to be more patient-friendly than others. 



124 COLUMBIA JO UR .'\'AL OF A SU .. \" LA II ' [\'ol. 30:113 

remain more concerned about the reputational impact of dispute . Such 
concerns include both the immediate impact of protestors interferrng with 
day•to•day hospital operations and also the potential influence on 
hospital s' relationships with their administrative supervisors. 

Second, although most cases are resolved outside the courts, the 
number of medical disputes in the courts has also surged since the early 
2000s. 37 The threat of protest and violence leads courts to pro\-ide 
compensation to most plaintiffs, even those with weak legal claimo . The 
legal system ma y have been weighted in favor of hospitals, but court 
practice reacted to the threat of instability by seeking to ensure plaintiff,.. 
recover ed some damages. My prior study of medical dh,pute:. in one 
municipality in central China found that plaintiffs recovered ,-ome 
damage s in 77 percent of cases.38 Courts were particularly likely to award 
damages in cases of clear violations of medical practice or standards, such 
as prescribing overdoses of medication, cases of clear misdiagno;;is, and 
cases of extreme outcomes from common procedures. But court•awarded 
compensation often appeared tied as much to the severity of the plaintiffs 
injury as to the degree of the defendant's wrongdoing. Compromise 
verdicts are frequent , with courts appearing to requ1re each party to 
undertake half of the damages suffered. 

That plaintiffs receive some damages does not mean they have won 
th eir case. Plaintiff s often recover only a portion of the amount sought in 
court. Plaintiff appeals of cases in which they received compensation are 
common, reflecting plaintiff dissatisfaction with the amounts awarded . 
Nevertheless, the fact that plaintiffs generally do receive some 
compensation from courts demonstrates that claims that plaintiffs ha,·e 
no chance in court are overstated. 

Court decision s do not provide a framework that influences 
negotiations outside of court. Instead, stability concerns shape outcomes 
in court. Judges confirm that they sometimes order hospitals to pay 
damages in cases in which there is no evidence of error in order to appease 
plaintiffs and prev ent protest. Courts seek ways to expand liability 
against hospitals, including awarding damages even when there is 

00 
or 

little evidence _of causation between the alleged negligence and the injury. 
Thus, courts m my study awarded damages for wrongdoing such as 

. 

38 

The fact th~t hospitals are gen~rally less concerned ..,.1th the financial impact of 
disputes than with the effect on their reputation does t h h 

. . . no mean t at t e amount,; 10 controv ersy are ms1gnifi cant. The growth in disputes and th fi I · · h 
. . e nanc1a opportunities sue disputes pre sent resulted m the development of a specialized b h h I I r 

ar w1t JO t C ega proICSSIOll. Many lawyers who handle such cases are former doctors Alth h h · al h 11 b . • oug most represent o,-p1t s, t ere are a sma num er of lawyers m most ma 1·or c 't• h li · · 
. . . . 1 1es w o spec1a zc m representing plamtiff s, often m part on a contmgent-fee basis. 

:r, The _Supre1;11e ~eople's Court reported that courts nationwide heard 17 000 medical 
malpra ctice claims m 2010, a 7.6 percent increase fro 200 S ' , 
Statistics (on file with the aut hor ) D t 1 m 9. upreme Peoples C-0urt 

38 • • a on ater years appears to be unavailable. As far as I am aware, no emp1ncal study of medical · · · 
carried out since my study in 2013. malpractice litigation has been 



2016) DOCTOR-PATIENT TRUST IN CHINA 125 

failure to maintain records, failure to produce evidence, illegal practice of 
medicine or use of doctors wit h insufficient qualifications, denial of 
treatment , or incomplete diagnosis and treatment. In three cases courts 
awarded damages for patient suicides or attempted suicides.39 In other 
cases courts awarded damages against large hospitals even though the 
primary harm had resulted from patients seeking care from unlicensed 
doctors at local clinics. 40 

Judges believe that appeals and protest are minimized by ensuring 
that plaintiffs receive some compensation, even if courts need to push the 
limits of (or ignore) existing law in order to reach such outcomes. 41 This 
was particularly true prior to 2010, when judges sought to ameliorate the 
low damage awards available under the Regulations by expanding other 
forms of liability against hospitals, including by permitting claims for 
ordinary negligence. 42 Judges also argue that they must take account of 
plaintiffs ' situations, and this means granting compensation to plaintiffs 
facing difficult circumstances. Judges view themselves as being caught 
between patients' demands, pressure from superiors to avoid escalation 
and protest , and legal requirements . 

The willingness of courts to award damages to most plaintiffs reflects 
the institutional framework in which courts operate. As protest and 
unrest surged in China in the early 2000s, courts became concerned with 
preventing instability across a range of substantive areas. 43 Courts at 
times appeared to serve as compensation agencies for th e state, not 
arbiters of fact or law. As one judge commented, "Courts are not law; 
courts are a mechanism for solving government problems." Courts' 
primary goal in many cases was to ensure that the case was resolved and 
did not result in protest or escalation. Courts innovated in order to protect 
themselves from protest and criticism, not to expand their authority. 

The Decision of the Communist Party's Fourth Plenum in 2014 set 
forth a roadmap for extensive reform to China's courts. 44 Reforms are 
designed to make the courts more professional and more accessible and 
to reduce external pressure on the courts. It remains too ear ly to assess 
the effect of these reforms on how courts adjudicate medical disputes. 

:,e Liebman, supra note 2, at 216-217, 236-37. 
40 Court cases also provide a window into problems in China's healthcare system. Many 

claims resu lted from patients who delayed treatment unt il very late in an illness, like ly due 
to the high costs of treatment. Claims arising from the use of unlicensed doctors were 
common. Likewise , many claims resulted from patients who sought drugs from third parties, 
not hospitals , or who obtained care from doctors who were moonlighting away from their 
regular place of employment. 

11 There is almost certainly significant variation among courts. My study examined one 
largely rural municipality in central China. Liebman, supra note 2, at 184. 

12 My 2013 study found a modest increase in damage awards from 2001 to 2010, but very 
few awards that could be classified as large -in t he hundreds of thousands of yuan. Id. 

43 Benjamin L. Liebman , Legal Reform: China's Law-Stability Paradox, 143 DAEDALUS, 
no. 2, Spring 2014, at 96 . 

., Benjamin L. Liebman, Authoritarian Justice in China: Is There a 'Chinese Model'? in 
THE BEIJING CONSENSUS? HOW CHINA HAS CHANGED THE WESTERN IDEAS OF LAW AND 
ECONOMIC DEVELOPMENT AND GLOBAL LEGAL PRACTICES 225 (Chen Weitseng ed., 2016). 



126 COLUMBIA JO URNAL OF ASIAN LAW [Vol. 30:113 

The threat of protest and violence from medical disputes remains and 
appears likely to continue to influence how courts handle such cases. 
Whether courts are permitted and encouraged to follow the law even 
when state interests in social stability might suggest a different outcome 
will be a key test of just how far the Fourth Plenum 's reforms are 
designed to go towards shifting the role of China's courts. 

Third, government intervention in medical disputes is common. 
Many disputes become disputes between protestors and government 
officials. Hospitals at times welcome such intervention , as the 
involvement of Party-state officials helps to shift responsibility for 
disputes onto the shoulders oflocal officials. But intervention also results 
in pressure on hospitals to settle. Intervention by government officials 
into disputes between patients and hospitals confirms the view of 
patients that hospitals are state actors and that such disputes are 
fundamentally disputes with the state. State intervention appears to do 
little to further patient trust in hospitals. 

The willingness of officials to intervene in what in other countries 
would be civil disputes between private parties reflects the reality that 
the overwhelming majority of healthcare providers in China are state 
actors. Yet it also reflects a dynamic that I have described elsewhere as 
the "over-responsive state." 45 Faced with unrest, officials are unwilling to 
allow the legal system to resolve disputes. This responsiveness , even if a 
rational response of state actors, 46 also furthers the belief that the state 
will ultimately intervene to provide assistance to those in need. 
Intervention incentivizes further unrest. 

Fourth, the resolution of medical disputes on the streets and in 
courtrooms suggests that many of the problems are systemic, reflecting 
not just the healthcare system or the courts but also the functioning of 
the Chinese political system as a whole. Trust in institutions and 
individual state actors (including courts and hospitals) is weak in 
China, 47 even though trust in the central Party-state remains robust. 48 

Problems in the healthcare system and the fact that medical care often 
invo lves questions of life and death exacerbate this distrust . Breaking the 
cycle of distrust in hospitals and in the courts is not simply a question of 
improving the quality of courts or of medical care. 

The rise in patient-hospital conflict demonstrates how trust can 
spiral downward even as institutions improve and highlights the fact that 
trust depends both on the quality of institutions and on popular 
expectations. China's healthcare system and courts improved 
significantly between the start of the reform era in 1978 and the early 

15 Liebman, supra note 2, at 242-51. 
46 Reliance on protest may make sense as a screen for thos e with legitimate grievances. 

Liebman, supra note 2; Peter L. Lorentzen, Regularizing Rioting: Permitting Protest in an 
Authoritarian Regime, 8 Q.J. POL. SCI. 127. 

"Li Lianjiang, Political Trust in Rural China, 30 MOD. CHINA 228, 232 (2004). 
"'Elizabeth J. Perry, Chinese Conceptions of "Rights''.· From Men cius to Mao-and Now 

6 PERSP. ON POL. 37 (2008). ' 



2016] DOCTOR -PATIENT TRUST IN CHINA 127 

2000s. Yet reforms to institutions failed to keep up with popular 
expectations regarding how these institutions should function. 

IV. LEGALIZING TRUST? 

Neither China's formal law nor court practice created the cycles of 
distrust that characterize patient-doctor interactions and that result in 
protest and violence. But the legal framework almost certainly made such 
problems worse. Can the legal system play a more constructive role in 
reducing patient-doctor conflict? This essay concludes with four 
observations regarding the potential role of law in addressing the 
problems that result in distrust between doctors and patients. 

First, one lesson learned from examining the role of law in the rise of 
patient-hospital conflict in the 2000s is that over-reliance by hospitals on 
a leg al framework heavily tilted in their favor likely exacerbated conflict 
by incentivizing patients to use protest and by producing a backlash in 
the courts. The interaction of formal legal rules that were clearly one-
sided with weak trust in official institutions and a strong tradition of 
protest produced a cocktail of unrest. It is in the interests of patients and 
doctors alike to have legal rules that attempt to achieve a balance 
between patients and healthcare providers. The current chaotic web of 
different practices, with some courts permitting patients to rely on for-
hire judicial inspection organizations and others insisting on the 
continued use of medical review boards, has done little to improve 
confidence in the system, from patients or doctors. Likewise , building 
effective mediation institutions requires ensuring that such institutions 
are neutral arbiters of disputes, not just health bureau (or insurance 
company) efforts to shift the locus of dispute away from hospitals and to 
reduce compensation payments. 

Most of the legal reaction to the rise of medical protest and violence 
has been punitive, focusing on stopping protest, rather than addressing 
the problems that give rise to protest. Recent efforts to criminalize protest 
against hospitals and to outlaw specific patient conduct linked to protest 
may reduce the frequency of extreme actions by patients and their 
families. Such provisions will not result in greater trust in medical care. 

Many recently proposed or initiated reforms focus on dispute 
avoidance, not improving the quality of care. Some commentators in 
China have argued for the creation of government-backed compensation 
funds to provide assistance to patients who suffer adverse outcomes from 
medical care not linked to negligent care. Such proposals appear 
primarily designed to shift the burden of disputes away from hospitals. 
Likewise, some hospitals in China have begun experiments designed to 
reduce the likelihood of disputes. One Beijing hospital now requires that 
lawyers be present when doctors inform patients of the risks of surgery. 
The goal appears to be both to dissuade patients from suing and to ensure 
that doctors provide adequate information to patients. Some hospitals 
likewise have expanded the use of lawyers in training doctors about 



128 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:113 

needed disclosures; one hospital now video records doctors informing 
patients of possible adverse outcomes in high-risk cases. At least one 
hospital in Beijing has experimented with mandating that patients 
undergoing high-risk surgery purchase insurance (sold by the same 
company that insures the hospital) against adverse outcomes not due to 
negligence. The goal appears to be both to raise awareness of adverse 
outcomes and to shift the burden of paying for such outcomes to patients. 

Second, the discussion of the legal framework governing doctor-
patient interactions in China must shift from a focus on dispute 
resolution to a focus on other measure s that might help to strengthen 
doctor-patient relationships. Disputes reflect a breakdown or lack of trust; 
disputes are rarely the cause of mistrust . The lack of patient trust in the 
medical system is the result of a range of problems in the healthcare 
system. Most such problems are unlikely to be addressed by new legal 
provisions. There is also a need to shift the legal and policy conversation 
in China from a focus on dispute resolution to thinking about whether 
law can play a role in improving patient confidence in the system through 
measures other than dispute resolution. 

There are no easy solutions, but experience in other jurisdictions 
suggests a range of legal and policy steps that should receive increased 
attention. These include provisions mandating greater disclosure of risks , 
increased transparency regarding errors and standards , stronger limits 
on conflicts of interests , clearer practice standards for doctors , greater 
emphasis on patient health literacy , mandatory reporting of adverse 
outcomes, and stronger confidentiality provisions for professional 
investigations of misconduct. None of these offers a perfect solution; 
scholarship in the U.S. has argued that law plays only .a limited role in 
increasing trust. 49 But greater focus on such measures would begin to 
shift the focus away from disputes and toward measures that might 
prevent error, improve patient confidence, and reduce the likelihood of 
patient protest .50 

Increased, transparency measures are particularly worthy of further 
attention as a mechanism for improving trust in the healthcare system. 
Other state institutions, including the courts, securities regulators, and 
China's environmental ministry , have sought to use transparency both to 
reduce wrongdoing and to increase popular trust. Imposing greater 
obligations on hospitals to report adverse outcomes and incidents of error 

: Mark 1:-Hall , Law, Medicine, a~d ~st, 55 STAN. L. REV. 463 , 520 (2002) . 
Some mvolved m legal debates m China have expressed interest in apology laws th t 

would msulate doctor apologies from liability. Weak rules of evidence and proced 
Chinese courts might make it difficult to ~nsure that apologies are not taken as admi:;

0
: 

of fault. Nevertheless, apology laws rrught provide some mod t · 
d . . . . es unprov ement to the ynarrucs of distrust that give nse to so much conflict Pla;~tiffs ' l h 1 £ · d . . · awyers ave a so argued 
or mcrease use of Crlllllnal sanctions against doctors a proposal not surp · · 1 • d 
k t· 11 b h · ' nsmg Y viewe s ep 1ca Y Y _osp1t~s and doctors. Likewise, proposals to impose personal liabili . 

doctors have gamed httle traction. Imposing liability on doctors mi ht well in . on 
higher standard of care, but would do little to increase trust. g centivize a 



I 

2016] DOCTOR-PATIENT TRUST IN CHINA 129 

might likewise offer modest improvements by reducing negligence and by 
increasing patient trust. 51 But transparency is needed not only regarding 
errors, but also on appropriate practice standards and as part of a broader 
effort to improve healthcare literacy. 

Third, there is a need for a role for independent and autonomous 
organizations that advocate on behalf of patient interests in both 
individual cases and at the national level. Patient safety organizations 
have played important roles in legal and policy debates in many other 
countries. One lesson learned from the rise of medical conflict in China is 
that failure to permit the evolution of autonomous and transparent 
institutions may breed even more instability. 

At the individual dispute level, much debate in China continues to 
focus on whether courts should permit the use of judicial inspections or 
should require inspections by medical review boards. Little of this debate, 
however, has focused on whether steps could be ta.ken to improve trust in 
either set of institutions, for example by including patient advocates on 
the review boards . Lawmakers, courts, and academics have failed to 
create or even to propose institutions for evaluating medical error that 
balance patient rights with the need for experts to assist in evaluating 
whether or not medical enor has occurred. Yet finding such potential 
advocates is difficult given the lack of patient advocacy organizations. 

At the national level, one reason that hospitals have proven to have 
so much influence over policies and law is that there are no organizations 
effectively advocating on behalf of patient interests. This is not surprising: 
restrictions on the development of NGOs and other autonomous 
organizations make it difficult for effective patient advocates to emerge 
and to play such roles. This situation has been made worse by the recent 
tightening of oversight over civil society. 

Fourth , increasing patient trust in medical care will require greater 
separation of hospitals from the state. Many of the problems discussed 
above stem from low -quality care and over-burdened medical providers. 
But the lack of separation between the state and hospitals contributes to 
lack of trust and to violence by transforming many disputes into conflicts 
with the state. State oversight also exacerbates pressure on hospitals to 
settle, even in cases where the:i:e is little or no evidence of error, thus 
incentivizing further protest. 

Hospitals face many challenges, and some of these challenges stem 
from the fact hospitals are expected to do too much. Yet some result from 
the fact that hospitals remain very much state actors. Ties to the state 
provide a measure of protection for hospitals, but also mean that popular 
distrust in healthcare providers is not readily disentangled from popular 

. , Developed legal systems of course also struggle to balance patients ' interests in 
compensation with the goal of improving medical care. The widespread practice in the U.S. 
of sealed set tlements in malpractice cases does little to improve transparency or to reduce 
the frequency of error. See, e.g., Ross E. Cheit, Tort Litigation, Transparency, and the Public 
Interest, 13 ROGER WILLIAMS U.L. REV. 232, 246 (2008). 



130 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:113 

distrust in a wider range of state institutions. Greater separation of 
hospitals from the state would allow more neutral oversight of healthcare 
providers and, in the long run, might also further patient trust. 

Reforms to Chinese law may result in modest improvements to the 
cycle of distrust that has resulted in so much violence - and which also 
undermines patient care. Law can and should play a supporting role to 
needed healthcare reforms. Yet the key observation of this essay is about 
the limits oflaw in addressing patient-doctor distrust. The limited role of 
law reflects both the weakness oflaw and also state ambiguity about the 
role law should play in ordering Chinese society and governance. The 
primary question in China remains not whether law can play a positive 
role in reducing tensions, but whether law and the legal system can avoid 
making these problems worse.