The National People's Congress (NPC), China's top legislature, recently reviewed the draft tort liability law and proposed that victims should provide evidence to prove the culpability of medical staff if they seek redress.

The new proposal received divergent reactions from medical staff and patients. Ordinary patients fear that they lack the professional medical knowledge to safeguard their rights. For their part, the hospitals claimed that the new measures could reduce unnecessary treatment and management costs.

The current system, implemented in 2002, requires medical staff to prove they are not responsible for any medical accident. It resulted in unnecessary medical treatment, and sometimes nonfeasance, admitted Chen Anwei, former vice president of the Third Affiliated Hospital of Guangzhou Medical University. She took pneumonia treatment as an example. The doctors previously would act to reduce inflammation when treating pneumonia. But now most of them require a couple of days of sputum culture, and a test to detect and identify bacteria infecting the lungs or breathing passages. "The test costs hundreds of yuan per day. Patients have to spend much more to cure their pneumonia," explained Chen. "We have to say that the higher medical cost is driven by the existing liability system."

Surprisingly, hospitals did not give an unconditional welcome to the new proposals, although they admitted that shifting burden of proof to the patients would cut their management costs. "Most of the hospitals have worked hard to keep their medical records, and formulated relevant procedures on medical disputes, although the current system is obviously in favor of patients," said Chen, adding that medical disputes were not the result of issues about who should carry the burden of proof but of the distrust between medical staff and patients.

According to the draft, hospitals and medical institutions still have to prove their non-liability in cases related to law and regulation violation, and concealing, fabricating or destroying medical records. But this did not win support either. "We have little knowledge of the medical terms," said a Mr. Li. "The victims might not even be conscious of medical errors."

"General terms used in the new proposal – acts that contravene the management laws, administrative regulations, and professional ethics – are so ambiguous," complained a Ms. Hu. "It's unfair for laymen who seek redress."

Also controversial is a clause under which medical chiefs would be authorized to approve emergent treatment without patients' or their relatives' consent.

The clause was aimed to enhance the "life first" principle. "We will take first-aid measures (without prior consent) if the patient is sent to the hospital in coma with no accompanying relatives. At the same time, we will report the case to the supervisory bodies," said a hospital chief. "It was a tacit principle when hospitals and patients enjoyed a harmonious relationship. But the new clause will put hospitals in dilemma since it doesn't clarify who will be responsible for negative consequences."

The distrust of patients has already led to several tragedies.

A pregnant woman died on November of 2007 in Beijing because her husband refused to give surgical consent. Last year in Guangzhou, a hemorrhaging girl was sent to the hospital by her parents. The primary examination showed the bleeding was caused by an ectopic pregnancy that was denied by the girl. She swore to her parents she had never had sex before. "The surgery involved can result in sterility. The parents refused to sign the surgical agreement because they wanted to cover the scandal," recalled Chen. "They even doubted the doctor's diagnosis." Fortunately, the girl was saved and later admitted she had lied for fear that her parents would punish her for premarital sex.

"Patients will think twice before they follow a doctor's advice. Sometimes they miss timely treatment," said Chen, who called for a better relationship between patients and hospitals. She welcomed more freedom for doctors to take actions and demand a relative liability clause which defines final responsibility. "A detailed liability clause covering different situations will ensure a better environment for doctors to perform their professional skills," concluded Chen.

(China.org.cn by Huang Shan, January 7, 2009)