Shifts in Medical Liability in the Macau SAR

The Macau SAR has a civil law legal system, historically connected to the Portuguese legal system included in the Roman-German family of legal systems. Until Law 5/2016 (Medical Error Act), medical malpractice claims could be framed in tort and/or contract. Certain aspects of administrative law related to treatment provided by public healthcare providers, in particular as regards their duties and liability, have a bearing on the applicable substantive and procedural legal regime and entail the jurisdiction of administrative courts. Aggrieved patients faced the challenge of navigating an uneven level playing field and the burden of proving fault, damages, and causation. The approval of Law 5/2016 was protracted, and there was a lack of consensus in society. Nevertheless, it has unique features: a public committee is created and charged with providing forensic expertise in cases of alleged medical malpractice and another public committee is created to handle and conciliate medical malpractice claims, award just satisfaction, and prevent lawsuits. The aim of this contribution is to explain this legislative shift, critically examine the challenges that it has brought forth, and analyse it in a comparative law context. Building on existing scholarship, this article presents Macau's novel medical liability system, which has unique features, to a wider global audience: it identifies the aspects that can be perfected in future revisions of the law and highlights the merits of the missed chance, envisaged in the 2005 Green Paper, to move away from fault-based liability towards a no-fault compensation system.