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."
(法制日報
[Legal Daily], translated by Guo Xiaohong for china.org.cn,
April 25, 2002)