Download This PaperNo-Fault Compensation for Medical Injuries: The Case of China
Ding, Chunyan, "No-Fault Compensation for Medical Injuries: The Case of China" (2020) 16(1) Otago Law Review 77-100; City University of Hong Kong Centre for Chinese and Comparative Law Research Paper Series Paper No. 2020/035
19 Pages Posted: 29 May 2020 Last revised: 18 Mar 2021
Date Written: November 18, 2019
Abstract
A global debate about the merits of a no-fault system alternative to tort law for compensating victims of medical injuries started in the early 1970s. Since then, a number of jurisdictions have established no-fault schemes and developed three major no-fault scheme models for medical injuries: a stand-alone, comprehensive no-fault compensation scheme that acts as an alternative to civil litigation (e.g. New Zealand’s no-fault scheme); a no-fault scheme for medical injuries that co-exists with civil litigation (e.g. the Nordic no-fault compensation schemes for medical injury); and a more limited no-fault scheme for compensating a certain type of medical injury (e.g. no-fault compensation schemes for birth-related neurological injuries in some states of the USA). However, little academic attention has been paid to the situation in China on this issue, namely whether any no-fault schemes exist, if so, how they operate, and their unique features and problems. This article fills the gap by focusing on two no-fault schemes for compensating medical injuries currently operating in China: one compensates for no-fault clinical injuries, and the other compensates for no-fault adverse events attributed to vaccination. Although these two schemes sound like the second model and the third model of no-fault scheme, this article finds that neither of them is a genuine no-fault scheme because they have not removed the requirement of fault. Instead, the two schemes require victims to prove that their medical injury was “not caused by fault”. This requirement substantially reduces the merits of the no-fault system, causes additional obstacles to victims in seeking no-fault compensation, and limits accessibility to the no-fault system. The article suggests that the Chinese government should establish a genuine no-fault scheme for compensating victims of vaccination adverse events to replace the existing one, although it remains open for discussion whether the current no-fault scheme for medical injuries should continue or be extended.
Keywords: No-fault system, Compensation for medical injuries, Compensation for no-fault adverse events attributed to vaccination, China
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Chunyan Ding (Contact Author)
City University of Hong Kong - School of Law ( email )
6/F, Lee Shau Kee Building
Kowloon, Shatin, New Territories
Hong Kong
City University of Hong Kong (CityU) - Centre for Chinese & Comparative Law ( email )
Tat Chee Avenue
School of Law, City University of Hong Kong
Kowloon
Hong Kong