Patients have been generally optimistic about the New Medical Negligence Handling Regulations, which they believe will grant them long-sought after justice in medical malpractice cases against hospitals. But since the launch of the new laws in September, only small steps have been made in protecting the vulnerability of patients.
Hospitals Mobilized, Patients Ill-prepared to Play by New Rules
The promulgation of the new medical negligence act appears to have added further strain to hospitals. Large hospitals in Beijing are all making extensive preparations to deal with the act. The Sino-Japan Friendship hospital bought 2000 prints of The New Medical Negligence Handling Regulations to distribute to each of its administrative employees, doctors, and nurses. Compulsory ?feature lectures? and exams were also organized to better educate doctors and nurses. The Hospital Affairs Department hurried to input all medical negligence lawsuit verdicts into computer database before September 1.
Hospitals in Shanghai made the new regulations available to 150 thousand medical personnel. The Shanghai Municipal Health Bureau specifically issued some suggestions and guidelines for enforcing the medical negligence regulations, requiring each hospital to establish a quality-monitoring department to deliberate on difficult diagnosis, treatments, and operations, and ensure a high quality of medical service. The Shanghai-based Ruijin hospital went as far as reissuing all job specifications and operational procedures in all of its medical departments. The Out-patient Department?s(O.P.D) 'operational procedures' now contains over several hundred detailed entries in an attempt to eliminate any loopholes that could land the hospital in court.
Other hospitals have held special training courses on how to keep standardized medical records. Many big hospitals are considering buying medical liability insurance, something long ignored and even despised by hospitals, in an attempt to ward off the possibility of substantial losses resulting from medical malpractice lawsuits.
The new arbitrators of medical negligence are now ready to perform their duties. Director Gu of the Guangzhou Medical Association said, "700 medical technical experts have been selected from a pool of 1800, all of vice director level, to provide recommendations to a variety of medical services, and educational and research institutes. The comprehensive medical negligence watchdog will be subdivided into fifty faculties, each consisting of around 10 experts."
While readers are continually swamped with headlines concerning the full mobilization of new hospital negligence laws, they still rarely hear anything on the subject of the patients, the people who are supposed to benefit most from the new laws which are intended to protect their rights. Which organizations have been set up to review the act on behalf of patients and their families? What channels are available to them to gain an understanding of their interests and rights? How can they make use of the new regulations to face up to the power of the hospitals? The mass media has been noticeably quiet on all these questions.
"We had Medical Negligence Handling Regulation before, but the average patient doesn?t have the capacity to research all the documentation and regulations prior to any medical mishap which may or may not hit them on the head," said Liao Xianqun, a retired middle-school teacher who has just taken a hospital to court. "Theoretically, the misdiagnosis of influenza can potentially lead to fatality. But who has the time or expertise to read through the Medical Negligence Handling Treatment, the General Principles of Civil Law, the Doctors Code of Conduct and the Nurses Management Regulation for just a little flu??
Impartiality, a Remedy for Fair and Just Arbitration
A change of medical negligence arbitrator is widely considered as the most significant amendment within the new act. In the past, medical malpractice arbitration committees, affiliated with various levels of medical administrative departments, were in charge of reviewing medical accidents. Patients described this process as rather like 'a father adjudicating for his son'. Thus patients often feel that decisions made by these committees were often based on poor justifications and offered them little comfort, further exacerbating tensions between the medical profession and patients.
The new regulations have designated the China Medical Association, China?s top independent medical institute with 78 faculties and 430 thousand members, as its highest arbitration authority. A prerequisite for becoming an arbitration candidate are that applicants have a reliable record of professional excellence and sound ethical background, an element that the old regulations also thought necessary to include.
Patients appear to have valid reason for concern. The China Medical Association, though independent in day-to-day operations, is still part of the same broader medical collective. It?s difficult for medical administrators to avoid a conflict of interest when the association arbitrating medical negligence cases is made up of industry peers. For example, local drug regulators usually only make brief visits to the larger hospitals for fear of ruining their relationship with the local health bureau, the highest local medical authority.
Recently, hostpitals in Sichuan province?s capital Chongqing and other several cities, sponsored by local medical associations, staged ?rehearsals? of medical negligence arbitration cases to test the effectiveness of the new regulations. In these rehearsals, almost all the hospitals won their cases convincing the patient?s families that they were not to blame.
The tendency of doctors to protect their own in cases of medical malpractice was a public secret. A creditable source who once took part in such arbitration cases said, "We all tend to believe that 'lightening strikes without warning'. We all are in the same boat, and also likely to come across each other from time to time. If I?m too strict with a defending doctor today, maybe he?ll be crucifying me tomorrow."
Director Gu of the Guangzhou Medical Association admitted that the 700 medical experts are all selected from local hospitals which have passed the Grade III and Class A examinations. (China rates its hospitals according to medical functions and regional coverage with grades I, II, and III, and quality of service with grades 'A', 'B', and 'C', with grades III and 'A' indicating the highest level of recognition.) Whether it?s the medical administrative departments or the medical association conducting the arbitration nothing changes the fact that its still 'local doctors arbitrating local doctors'. Some patients have referred to this phenomenon as ?old wine in a new bottle? and called for arbitration to come from outside doctors in a bid to dispel local protectionism.
The new regulations are praised for pioneering a system which will let people from non-medical backgrounds, such as congress deputies and political consultative conference members, to participate in arbitrations. However, Peng Yingji, a Chongqing municipal people?s congress deputy, doesn?t believe this help very much. Peng said, "Even though you are convinced that a hospital has done something wrong it?s difficult to prove and your arguments tends to get lost among the incomprehensible medical jargon they throw back at you to refute your claims."
Doctor Zen, vice director of Neuromedicine at Guangzhou?s No. 2 People?s Hospital, said, "Some experts may commit perjury in arbitration case. The ethics of medical professionals will play a major role in such situations."
The Truth can be Hard to Find
The new regulations give specific guidelines on protecting a patient?s "right to know" including, "Patients are allowed to make copies of their medical records". The 1987 version of Medical Negligence Handling Regulation didn?t restrict a patient?s access to their medical records either, but some hospitals just blatantly refused to allow patients to view them.
The real key to protecting the vulnerability of patients is authenticity of the explanations provided in medical records. When a medical negligence case is heard, patient records will play a key part in establishing a case, and may even provide the basis for incarceration. As a result, doctors and nurses usually only keep vague medical records which do not always accurately reflect the true nature of a doctor?s complete course of treatment. The omission of just several words may be enough for a doctor to alleviate, if not escape, warranted punishment.
Chang Yongchun, a lawyer for Suotong Law Office based in Chongqing, said, "Patients can request authentication institutes to validate and forward their request to court if they believe evidence provided by a hospital has been tampered with."
Authentication is a long and difficult procedure. For most cases, assessing the validity of medical records requires extensive expertise, and is not just a matter of discovering altered or fabricated records. Medical records often constitute the sole piece of evidence for an entire case as there is rarely any other method of record keeping employed. It?s rare to see doctors punished for fabricating medical records.
Liao Xianqun?s husband passed away in the Emergency department of Chongqing Medical Center. Liao said, "On that day consecutive malfunctions occurred in two imported respiration machines, leading to low O2Sat levels ? an important physiological indictor in human ? in the patient. In the presence of Liao Xianqun and three relatives, doctors wasted around 8 minutes while twisted wires and broken pins hindered their ability to make swift and effective use of the respiration apparatus. The patient died in front of them.
Several hours after the patient's death, doctors wrote up the medical record saying, ". . . it took us just 30 second . . ." The clearly fabricated records provoked a strong reaction from the families who claimed the time was not consistent with the figure recorded in the hospital?s computer. Soon after this revelation, the vital figure stored inside the computer disappeared. Shi Ruofei, vice dean of the hospital, said, "We just couldn?t find it any more."
In court, the hospital supplied medical records to 'prove' it had followed 'standard procedures', claiming doctors cannot be held responsible for low levels of O2Sat. The court finally accepted that, "the medical records had been written according to the standards" and handed down a lenient verdict to the defendant, ordering the hospital to pay the patient?s family just 19 thousand yuan (US$2.29 thousand) in compensation. A hospital representative announced after the case, "We are pleased that justice has been served. We are the first hospital to be tried under the new regulations and we are proud of the favorable outcome. We can continue to hold our heads high, even in the face of adversity."
Liao Xianqun complained that even though patients are granted the 'right to know' the highly technical nature of the descriptions doesn?t help them better understand their condition. Hospitals, with their extensive medical experiences, can easily construct a case which paints them in a favorable light while at the same time debasing a patient?s claims. This phenomenon hasn?t changed even now the onus of proof has been reversed and placed on the hospitals.
Medical Negligence Concerns Rely on Doctor?s Conscience
The enactment of the New Medical Negligence Handling Regulation does little to narrow the obvious gulf between the financial and material resources of hospitals and patients. Large hospitals, especially those dubbed as "Window Hospitals" and "Industry Pioneers", have massive influence over the development of relationships within the medical profession?s network. Professional medical negligence handling offices can swiftly and efficiently draw on an extensive range of resources, including those of local governments, the courts and mass media. Usually patients who sue hospitals individually find themselves in a highly vulnerable position.
Will hospitals ever stand in a patient?s shoes when evaluating the effects of medical malpractice? Most believe this is just a naive thought. As the state pushes for further medical care reforms, with the aim of leaving the nation?s health care system in the hands of the market, hospitals will become even more determined to profit from misfortunes of their patients, competing fiercely to win their custom.
In Chongqing, during the Spring Festival, many hospitals saw a noticeable decline in the number of both outpatients and inpatients. Hospitals that successfully achieved Grade III and Class A standings received only about 100 patients a day admitting only about 30 percent of these to inpatient departments. This forced a number of suspect reforms within these hospitals. Some organized doctor and patient forums, while others set up diagnosis "helpdesks" to "help" patients categorize their conditions. Some hospitals even went as far as supplying mobile transfusion machines for kids in an effort to attract patients. A number of hospitals began showcasing their services displaying family member?s accommodation, and private wards with sofas, color TVs, central oxygen supplies, central air conditioning, toilettes and 24-hour hot water. Almost all hospitals now run advertising campaigns to promote themselves through the mass media and enlarge their "customer base".
In such a ruthless market environment, hospitals attach the highest level of priority to their social reputation. In the event of a medical malpractice case, hospitals will exhaust every available resource to ensure victory in the courts.
A patient?s life is valuable. Medical negligence concerns a lot of people. The delicate nature of there events requires the utmost sensitivity. Justice under such circumstances relies not just on the law, but also on the conscience of medical practitioners.
(china.org.cn October 11, 2002)
