Private Law Theory

Abstract:
Causal uncertainty is frequently encountered in medical malpractice cases, both in China and in other legal systems. Under the traditional ‘all-or-nothing’ approach of proof rules, the prevalence of causal uncertainty makes proof of causation highly problematic in medical malpractice lawsuits. The cutting-edge development at the national level is to apply proportional liability in response to evidentiary uncertainty over causation. After examining both ‘law on the books’ and ‘law in action’ pertaining to medical malpractice, it is found that although the new Chinese Tort Liability Law lacks evident rules that handle the problem of causal uncertainty, Chinese courts are so active and flexible that they systematically employ proportional liability to the trial of medical malpractice cases. The proportional liability approach can be justified from both legal and law and economics perspectives.

Yu, Xiaowei, Causal Uncertainty in Chinese Medical Malpractice Law – When Theories Meet Facts (July 29, 2016). Tsinghua China Law Review, Vol 9, No 1, 2016.

First posted 2016-08-24 06:16:46