Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage

Yilin Hu

doi:doi:10.11648/j.ijls.20220503.17

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Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage

Yilin Hu

Published in International Journal of Law and Society (Volume 5, Issue 3)

Received: 21 July 2022 Accepted: 8 August 2022 Published: 17 August 2022

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Abstract

Since the 19th century, the compensation system for mental damage has been established in many countries. Unlike the general damage compensation, mental damage compensation refers to the non-property damage that requires the infringer to make the corresponding compensation by means of money. The mental damage compensation in the medical damage liability refers to the situation that the patient suffers serious mental damage due to the medical negligence of the medical staff, and then seek compensation from the medical institutions. The mental damage compensation in medical damage liability is both comforting and punitive. The comforting function is the main function, the punitive function is the auxiliary function. But so far, the determination of the principle and amount of compensation for mental damage in the medical damage liability is still controversial. This paper takes the restrictions on the amount of mental damage compensation in Germany and the United States as examples, introduces the relevant Chinese law and regulations as well as different views of scholars, combines relevant cases in China, and discusses the principle that the mental damage compensation should be appropriately limited. As for the amount of the compensation, this paper introduces the principle of proportional compensation, and further proves its rationality and feasibility by discussing relevant cases in China. Setting a maximum limit for mental damage compensation has always been the heart of tort reform which aims to reduce the cost of medical malpractice litigation. By setting a maximum limit, the amount of compensation is appropriately limited. Thus, while protecting the rights and interests of patients, the development of social and medical undertakings can be further promoted.

Published in	International Journal of Law and Society (Volume 5, Issue 3)
DOI	10.11648/j.ijls.20220503.17
Page(s)	305-318
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2022. Published by Science Publishing Group

Keywords

Medical Damage Liability, Mental Damages Compensation, Appropriate Limitation Principle, Proportional Damages

References

[1]	Teng, Y., Jiang, B., (2009). Research on Compensation for Mental Damage in Medical Damages – Discussion of the Referential Significance of Japanese Civil Law and American Medical Damage Compensation System. Chinese Health Service Management, 9, p619.
[2]	Pang, K., (2015). Legal Consideration on Compensation System for Mental damage in Medical Accidents. Journal of Liaoning Medical College (Social Sciences Edition), 8 (2), p22.
[3]	Teng, Y., Jiang, B., (2009). Research on Compensation for Mental Damage in Medical Damages – Discussion of the Referential Significance of Japanese Civil Law and American Medical Damage Compensation System. Chinese Health Service Management, 9, p620.
[4]	Wang L. (2010). Study on Tort Liability Law. China Renmin University Press. P699.
[5]	Damage is the victim's interest in a specific damage accident, that is, the interests of the victim damaged by a specific accident.
[6]	Damage is the harm of interest suffered by the subject of law for being deprived or damaged of the composition of its property or being physically injured.
[7]	Motive, Mugdan Band II, S. 12.
[8]	Zhang, X. (2020). Study on the Compensation System for Mental Damage. Law Press China. P407.
[9]	Victorian Railways Commissioner v. Coultas (1886) 12 VLR 895.
[10]	Dulieu v. White & Sons (1901) 2 KB 669.
[11]	Dillon v. Legg 68 Cal. 2d 728 (1968).
[12]	Pan, C., Wu, Y., (2006). The Girl Died in the Hospital, A Huge Amount of Compensation Was Ordered in the First Trial, Different Parties in the Case Held Different View – Why 350,000 yuan Mental Damage Compensation Was So Controversial. Legal Daily, 18 / Dec / 2016 (008).
[13]	Xu, Y., (2014). Discussion of Tort Damage Compensation. China Legal Publishing House, p208-p210.
[14]	Pu, C., (2001). Issue of Mental Damage Compensation in Medical Damage Cases. China Health Law, 9 (1), p19.
[15]	Jiangsu Provincial High People's Court, (2009). “Dispute over Medical Damage Compensation between Wang Shunling v. Zhenjiang First People's Hospital”. Su Civil Retrial Final Judgement No. 0015.
[16]	Zhejiang Province Wenzhou Intermediate People’s Court, (2008). “Dispute over Liability of Medical Damage between Mr. Wu and a hospital in Wenzhou”. Wen Civil Froth Trial Final Judgement No. 230.
[17]	Beijing High People’s Court, (2020). “Dispute over Liability of Medical Damage between Jia Chunsheng and Peking University Shougang Hospital”. Jing Civil Appeal No 5336 Civil Judgement.
[18]	Chen, X., (2010) Detailed Analysis of the Provisions of Tort Liability Law of the People's Republic of China and Cases. China Legal Publishing House, p73.
[19]	Henan provincial High People’s Court, (2020). “Dispute over Liability of Medical Damage between Zhang Huihui and Jinshui Beauty Cube Beauty Clinic”. Yu Civil Appeal No 2977 Civil Judgement.
[20]	Jilin Provincial High People’s Court, (2020). “Dispute over Liability of Medical Damage between Wang Shuzhi and Jilin Central Hospital”. Ji Civil Appeal No 2521 Civil Judgement.
[21]	He, S., (2002). New interpretation of medical disputes and Damages Compensation. People’s Court Press, p251.
[22]	Bryan, G., (2004). Black’s Law Dictionary, Thomson West 2004, Eighth Edition, p. 1336.
[23]	Robert, R. (2009). Emotional Distress In Tort Law: Themes Of Constraint, Wake Forest Law Review 44, p 1197.
[24]	Zhai, L., (2016). Criticism of Punitive Function of Mental Damage Compensation and the Comforting Function of Punitive Damages – Discussion on legislation perfection of the mental damage compensation and punitive damaged. Oriental Law, 2 p 32-44.
[25]	Yang, L., (2000). Discussion on Tort Law. Jilin People’s Press, p680-683.
[26]	Zhang, X., (2009). Interest Measurement of Legislation on Tort Liability Law. China Legal Science. 4, p179.
[27]	Chang, A., (2008). The Analysis of the Compensation Standard for Mental Damage in China. Journal of Political Science and Law, 04, p179.
[28]	Qu, M., Wang, Z., (2020). Analysis of Punitive Function of Mental Damage Compensation -- An Empirical Study Based on Compensation for Mental Damages in Medical Torts. Journal of Shandong University (Philosophy and Social Sciences Edition), 05, p31-41.
[29]	Li, H., (2016). Study of Legal Application of Personality Rights Infringement on Punitive Damages - Based on the Analysis of Article 55, Paragraph 2, of the New Consumer Rights Protection Law. Study and Practice, 01, p74.
[30]	Jiang, B., (2009). Seek social effects within the law. China Legal Science. 03, p6.
[31]	Zhejiang Provincial Intermediate People’s Court, (2006). “Appeal on Dispute over Liability of Medical Damage between Zhu Jianhua and Hospital of Traditional Chinese Medicine in Ningbo Zhenhai District”. Yong Civil First Finial Judgement No 1425.
[32]	Zhao, Y., (2015). Brief Discussion on the Determination of the Amount of Mental Damage Compensation in Medical Accidents. Rule bylaw and the society, 04, p69.
[33]	Healthcare. (2021). Big Data Report on National Medical damage liability Dispute Cases in 2020. Retrieved from https://new.qq.com/omn/20210220/20210220A0DRL300.html
[34]	Zhang, X. (2020). Study on the Compensation System for Mental Damage. Law Press China. P432.
[35]	Zhang, X. (2020). Study on the Compensation System for Mental Damage. Law Press China. P433.
[36]	Studdert, D., Kachalia, A., Salomon, J., and Mello, M., (2011). Rationalizing Noneconomic Damages: A Health-Utilities Approach. Law and Contemporary Problems, 74, 57-101.
[37]	The Civil Law Office of the Commission for Legislative Affairs of the NPC Standing Committee, (2010). The Complete Works of Legislative Background and Opinion of Tort Liability Law. Law Press China, p833.
[38]	Li, Y., (2007). Calculation Standard for Mental Damage Compensation. China Legal Publishing House, p9.
[39]	Yang, L., (2008). Discussion on Appropriate Limitation Principle on Liability of Damage Compensation for Medical Negligence. Journal of Political Science and Law, 06, p30.
[40]	Wang, L., (2010). Judgment essence and Trial Practice of Tort Law. People’s Court Press, p371.
[41]	Liu, Y., (2008). Discussion on Medical Uniqueness and Principle of Imputation of Medical Tort Liability. Written speech at the “Medical Infringement Seminar” held by Chinese Hospital Association on 25 July, 2008.
[42]	Jiang, F., (2013) A Comparative Study on the Medical Damage Liability System. Law Press China, p169.
[43]	Sugarman, S., (2005) A Comparative Law Look at Pain and Suffering Awards. DePaul Law Review, 55, p399.
[44]	Hyman, D., Silver, C., (2012). Medical Malprctice And Compensation In Global Perspective: How Does The U.S. Do It? 87 Chi.-Kent L. Rev. 163, 175.
[45]	Henderson, J., Richard, P., (2007). The Torts Process. Aspen Pub.
[46]	Hu, P., (2003). Study on the Mental Damage Compensation System. China University of Political Science and Law Press, p274.
[47]	Magnus, U., (2009). Unification of Tort Law. Translated by Xie, H. Law Press China. P97.
[48]	Vincent, J., (2004). American Tort Law. Translated by Zhao, X. China Renmin University Press, p61.
[49]	Smith v Department of Insurance, 507 So. 2d 1080 (Fla. 1987).
[50]	Teng, Y., Jiang, B., (2009). Research on Mental Damage Compensation in Medical Damages – Discussion of the Referential Significance of Japanese Civil Law and American Medical Damage Compensation System. Chinese Health Service Management, 9, p621.
[51]	Yang, L., (2002). Personal Right Law. People’s Court Press, p289.
[52]	Sanders, J., (2006). Why Do Proposals Designed to Control Variability in General Damages (Generally) Fall on Deaf Ears? (And Why This Is Too Bad), DEPAUL L. REV. 55, p489, 496-507.
[53]	Allen, R., (2007), An External Perspective on the Nature of Noneconomic Compensatory Damages and Their Regulation, DEPAUL L. REV. 56, p1249, 1257-58, 1275.
[54]	Wuhan Intermediate People’s Court. (2017). Dispute over Medical Damage Compensation between Chen v. Wuhan Caidian District Maternal and Child Health Care Hospital. Wuhan Intermediate Second Civil Final Judgement No 00213.
[55]	Wuhan Intermediate People’s Court. (2017). “Dispute over Medical Damage Compensation between Xia Minghong etc v. Liyuan Hospital Affiliated to Tongji Medical College of Huazhong University of Science and Technology”. Hubei Civil Final Judgement No 2625.
[56]	Ningbo Intermediate People’s Court. (2013). “Dispute over Medical Damage Compensation between Zhai Mingwu and Cixi People’s Hospital”, Zhe Yong Civil First and Final Judgement No 186.

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APA Style

Yilin Hu. (2022). Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage. International Journal of Law and Society, 5(3), 305-318. https://doi.org/10.11648/j.ijls.20220503.17

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ACS Style

Yilin Hu. Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage. Int. J. Law Soc. 2022, 5(3), 305-318. doi: 10.11648/j.ijls.20220503.17

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AMA Style

Yilin Hu. Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage. Int J Law Soc. 2022;5(3):305-318. doi: 10.11648/j.ijls.20220503.17

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@article{10.11648/j.ijls.20220503.17,
  author = {Yilin Hu},
  title = {Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage},
  journal = {International Journal of Law and Society},
  volume = {5},
  number = {3},
  pages = {305-318},
  doi = {10.11648/j.ijls.20220503.17},
  url = {https://doi.org/10.11648/j.ijls.20220503.17},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20220503.17},
  abstract = {Since the 19th century, the compensation system for mental damage has been established in many countries. Unlike the general damage compensation, mental damage compensation refers to the non-property damage that requires the infringer to make the corresponding compensation by means of money. The mental damage compensation in the medical damage liability refers to the situation that the patient suffers serious mental damage due to the medical negligence of the medical staff, and then seek compensation from the medical institutions. The mental damage compensation in medical damage liability is both comforting and punitive. The comforting function is the main function, the punitive function is the auxiliary function. But so far, the determination of the principle and amount of compensation for mental damage in the medical damage liability is still controversial. This paper takes the restrictions on the amount of mental damage compensation in Germany and the United States as examples, introduces the relevant Chinese law and regulations as well as different views of scholars, combines relevant cases in China, and discusses the principle that the mental damage compensation should be appropriately limited. As for the amount of the compensation, this paper introduces the principle of proportional compensation, and further proves its rationality and feasibility by discussing relevant cases in China. Setting a maximum limit for mental damage compensation has always been the heart of tort reform which aims to reduce the cost of medical malpractice litigation. By setting a maximum limit, the amount of compensation is appropriately limited. Thus, while protecting the rights and interests of patients, the development of social and medical undertakings can be further promoted.},
 year = {2022}
}

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TY  - JOUR
T1  - Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage
AU  - Yilin Hu
Y1  - 2022/08/17
PY  - 2022
N1  - https://doi.org/10.11648/j.ijls.20220503.17
DO  - 10.11648/j.ijls.20220503.17
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 305
EP  - 318
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20220503.17
AB  - Since the 19th century, the compensation system for mental damage has been established in many countries. Unlike the general damage compensation, mental damage compensation refers to the non-property damage that requires the infringer to make the corresponding compensation by means of money. The mental damage compensation in the medical damage liability refers to the situation that the patient suffers serious mental damage due to the medical negligence of the medical staff, and then seek compensation from the medical institutions. The mental damage compensation in medical damage liability is both comforting and punitive. The comforting function is the main function, the punitive function is the auxiliary function. But so far, the determination of the principle and amount of compensation for mental damage in the medical damage liability is still controversial. This paper takes the restrictions on the amount of mental damage compensation in Germany and the United States as examples, introduces the relevant Chinese law and regulations as well as different views of scholars, combines relevant cases in China, and discusses the principle that the mental damage compensation should be appropriately limited. As for the amount of the compensation, this paper introduces the principle of proportional compensation, and further proves its rationality and feasibility by discussing relevant cases in China. Setting a maximum limit for mental damage compensation has always been the heart of tort reform which aims to reduce the cost of medical malpractice litigation. By setting a maximum limit, the amount of compensation is appropriately limited. Thus, while protecting the rights and interests of patients, the development of social and medical undertakings can be further promoted.
VL  - 5
IS  - 3
ER  -

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Author Information

Yilin Hu

Sydney Law School, The University of Sydney, Sydney, Australia

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APA Style

Yilin Hu. (2022). Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage. International Journal of Law and Society, 5(3), 305-318. https://doi.org/10.11648/j.ijls.20220503.17

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ACS Style

Yilin Hu. Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage. Int. J. Law Soc. 2022, 5(3), 305-318. doi: 10.11648/j.ijls.20220503.17

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AMA Style

Yilin Hu. Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage. Int J Law Soc. 2022;5(3):305-318. doi: 10.11648/j.ijls.20220503.17

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@article{10.11648/j.ijls.20220503.17,
  author = {Yilin Hu},
  title = {Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage},
  journal = {International Journal of Law and Society},
  volume = {5},
  number = {3},
  pages = {305-318},
  doi = {10.11648/j.ijls.20220503.17},
  url = {https://doi.org/10.11648/j.ijls.20220503.17},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20220503.17},
  abstract = {Since the 19th century, the compensation system for mental damage has been established in many countries. Unlike the general damage compensation, mental damage compensation refers to the non-property damage that requires the infringer to make the corresponding compensation by means of money. The mental damage compensation in the medical damage liability refers to the situation that the patient suffers serious mental damage due to the medical negligence of the medical staff, and then seek compensation from the medical institutions. The mental damage compensation in medical damage liability is both comforting and punitive. The comforting function is the main function, the punitive function is the auxiliary function. But so far, the determination of the principle and amount of compensation for mental damage in the medical damage liability is still controversial. This paper takes the restrictions on the amount of mental damage compensation in Germany and the United States as examples, introduces the relevant Chinese law and regulations as well as different views of scholars, combines relevant cases in China, and discusses the principle that the mental damage compensation should be appropriately limited. As for the amount of the compensation, this paper introduces the principle of proportional compensation, and further proves its rationality and feasibility by discussing relevant cases in China. Setting a maximum limit for mental damage compensation has always been the heart of tort reform which aims to reduce the cost of medical malpractice litigation. By setting a maximum limit, the amount of compensation is appropriately limited. Thus, while protecting the rights and interests of patients, the development of social and medical undertakings can be further promoted.},
 year = {2022}
}

Copy | Download

TY  - JOUR
T1  - Appropriate Limitation for Mental Damage Compensation in Liability for Medical Damage
AU  - Yilin Hu
Y1  - 2022/08/17
PY  - 2022
N1  - https://doi.org/10.11648/j.ijls.20220503.17
DO  - 10.11648/j.ijls.20220503.17
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 305
EP  - 318
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20220503.17
AB  - Since the 19th century, the compensation system for mental damage has been established in many countries. Unlike the general damage compensation, mental damage compensation refers to the non-property damage that requires the infringer to make the corresponding compensation by means of money. The mental damage compensation in the medical damage liability refers to the situation that the patient suffers serious mental damage due to the medical negligence of the medical staff, and then seek compensation from the medical institutions. The mental damage compensation in medical damage liability is both comforting and punitive. The comforting function is the main function, the punitive function is the auxiliary function. But so far, the determination of the principle and amount of compensation for mental damage in the medical damage liability is still controversial. This paper takes the restrictions on the amount of mental damage compensation in Germany and the United States as examples, introduces the relevant Chinese law and regulations as well as different views of scholars, combines relevant cases in China, and discusses the principle that the mental damage compensation should be appropriately limited. As for the amount of the compensation, this paper introduces the principle of proportional compensation, and further proves its rationality and feasibility by discussing relevant cases in China. Setting a maximum limit for mental damage compensation has always been the heart of tort reform which aims to reduce the cost of medical malpractice litigation. By setting a maximum limit, the amount of compensation is appropriately limited. Thus, while protecting the rights and interests of patients, the development of social and medical undertakings can be further promoted.
VL  - 5
IS  - 3
ER  -

Copy | Download