On April 15, the first law in China to target the thorny, long-standing problem of hospital-and-patient conflicts made its appearance in the long-awaited Ordinance on Handling Medical Malpractice. The law will take effect September 1.
This ordinance consisting of 63 articles in seven chapters supplants the outmoded Measures for the Handling of Medical Accidents -- drafted by health administrations in 1987 -- and injects new concepts and operational modes into medical accident settlements.
The ordinance strengthens social supervision of medical institutions by promoting an awareness of responsibility to guarantee patients' right to know in regard to their treatment. It aims to solve medical disputes in a scientific and standardized way to safeguard the interests of both hospitals and patients.
In addition, the ordinance specifies the work boundaries of medical administration with a clear delineation of medical administration related to legal procedures to avoid the possibility of an unjust settlement. Previously, malpractice appraisal was made by health administrative departments themselves, acting as both judge and jury.
The ordinance has won high acclaim from law insiders who expect that its good effects will become evident when the law goes into force in September.
The past month has been a memorable one for most medical institutions. On April 1 the latest legal reading concerning medical malpractice went into effect with the Supreme People's Court switching the burden of proof from the plaintiffs to the defendants in such cases. The new ordinance followed a few weeks later. In our interview, "pressure" and "stimulus" were most-frequently-mentioned words by medical staff [in regard to the effect of the new law].
In 1987 the Measures for the Handling of Medical Accidents defines medical malpractice as negligence that causes death, disability, or functional disorder. Yet negligence which doesn't cause death, disability, or functional disorder isn't malpractice. The new ordinance, on the contrary, extends the sphere of medical malpractice and increases demands on hospitals and doctors. The new law stipulates that medical malpractice occurs when a physician or health provider fails to treat a medical condition according to health laws, related administration regulations, and medical standards in a way that causes harm that otherwise would not have happened. Article 33 in this ordinance also describes six situations which are not malpractice.
Some doctors hail the new law as a catalyst that will standardize the medical system, enhance the responsibility and awareness of doctors, and improve working attitude in the medical field. It also sounds an alarm to irresponsible doctors and those engaged in corrupt activities. A doctor surnamed Chen told us that he would turn the pressure into stimulus to improve his medical level.
Yet some doctors feel great pressure. A doctor, who refused to give his name, said many reasons contribute to conflicts between patients and doctors. One of them is the low quality of doctors. But more important is that patients usually pin excessively high hopes on medical treatment, which may cause a psychological imbalance when failure occurs. Although doctors, especially clinicians, feel great pressures in diagnosis and treatment, the fear of failure may tie their hands in regard to trying new approaches. They also support the issuance of this ordinance since they themselves are people who also need health care and legal protection. The ordinance, they expect, will help to improve the hospital management and usher in sound relationships between hospitals and patients.
Li Xinrong, 51, a malpractice victim from Tianjin, says she sees hope in this new ordinance. She believes during the lengthy legal battle in which she found herself mired that the medical record and pathological section provided by the hospital had been altered.
As of September 1, this will not occur to victims like Li Xinrong. The ordinance provides that patients are entitled to copies of all medical information records, and medical institutions should provide such service with copies that have a seal stamped in the presence of patients concerned.
It has long been a focus of dispute whether the hospital should provide medical records. Some patients used to conceal their own records in their treatment to win the initiative in a lawsuit. In the new ordinance, records should not be falsified and medical institutions must provide record copies for patients. If patients are refused without proper reason or hospitals don't keep records as required, hospitals will be punished accordingly.
Moreover, China Association of Medical Sciences will conduct an appraisal and evaluation of medical malpractice. The appraisal will be made by a panel of medical experts randomly selected from the association, and involved personnel will not be allowed on the panel to avoid conflict in a bid to pursue an open, fair, just, timely and convenient settlement.
Some patients hailed the ordinance a legal progress although it doesn't mean the patients will win the case with the help of new law. "The issuance of the ordinance shows our country has listened to the voice of a special group of patients."
(法制日报 [Legal Daily], translated by Guo Xiaohong for china.org.cn, April 25, 2002)
