Medical workers do their best to assist the recovery of patients, but they often have no way of stopping the pain caused by medical disputes.

The workers in white, for example, have found that their brave actions during the fight against the SARS (severe acute respiratory syndrome) epidemic may not help alleviate the increasing hostility between hospitals and patients.

Since the introduction of a new regulation relating to medical accident settlements, which was issued by the State Council and came into force in September 2002, patients have been making their complaints about hospitals known.

Under the regulation, patients can directly appeal to judicial bodies if they think malpractice has occurred. As a result, more aggrieved patients are turning to the law.

As the director of the Chinese Medical Doctors' Association, Yin Dakui, is deeply concerned about areas of medical settlements, which have had a wide repercussion among medical workers.

Similar disputes

Much of his attention has been focused on two similar disputes that took place last year in the departments of gynaecology and obstetrics at two large hospitals in Beijing.

In one of the disputes, a mother, seemingly healthy throughout pregnancy and during birth suddenly died in the delivery room when she was breast-feeding her baby.

The woman's relatives went to the hospital, calling on the doctors to account for her death, insisting that the hospital must be at fault.

As the supreme court states that "medical institutions should prove that they were not at fault when providing medical services to patients," the hospital performed an autopsy to reveal the cause of death.

A huge blood clot was found in an artery, which stopped the blood from flowing to her lungs. It was unrelated to pregnancy or birth.

"Under the regulation of the inversion of the burden of proof, the hospitals bear the burden of proof. But without the co-operation of patients or their families, such a process could be extremely difficult," says Yin. "In this case, it took a lot for the hospital to persuade the woman's relatives to finally agree to an autopsy."

As many medical experts argue over the high risks and uncertainties generally associated with clinical treatment, the burden of proof can force hospitals to choose more conservative medication and procedures, which may be less effective for patients.

"Our doctors have to first think about the possibility of medical claims, then make sure that the hospital can provide proof of exemption if an unfortunate incident occurs," said Gao Chunfang, president of the army's No 150 Hospital in Jinan, capital of East China's Shandong Province.

"However, medicine is a subject of exploration. If fewer doctors dare to take risks, medical progress will be greatly affected."

As many medical workers are questioning whether the 2002 regulation is reasonable for the medical profession, legal experts are looking at the issue from a patient's perspective.

"It would be unfair for the burden of proof to fall on the shoulders of patients, because they do not have the necessary professional medical knowledge and at present, it remains impossible for them to obtain some parts of their medical records," says Chen Zhihua, director of the Beijing Lawyers' Association's medical disputes committee.

It would be very difficult for patients to lodge a malpractice claim if they are not very clear about the whole treatment process.

To protect the legal rights of patients, the court sometimes applies the Civil Code to cases that are not classified as medical accidents by the regulation.

Xiao Hong, vice-president of the No 3 Hospital in Wuhan, says: "I can't understand it. I believe that medical procedures are totally different from common civil activities. Medical treatment itself involves a lot of risks and can be accompanied with many unknown complications. I see it as unfair for the court to use civil law to deal with medical claims."

New regulation

Chen says: "The new regulation is only an administrative regulation, so in practice it does not have direct binding force over the court, which can apply either the civil law or the burden of proof."

About 90 per cent of medical claims have adopted the regulation's compensation clause.

According to the regulation, experts organized by the Chinese Medical Association and its branches at various levels, which are non-governmental organizations, assess medical accidents.

However, many medical workers say that legal experts have been asked by the court, in some cases, to evaluate malpractice claims.

"As we know, legal experts are totally different from clinical doctors," says Liu Yinglong, deputy director of surgery at Fuwai Hospital in Beijing. "Their technical knowledge and ability to evaluate medical accidents are highly questionable."

Like Liu, many medical workers are pushing for the court to base its decisions on testimony of Chinese Medical Association experts.

Despite evaluations by experts organized by the association, no expert witnesses sign the final evaluation files.

"No signature means that nobody has undertaken the legal responsibility for the evaluation. So most of the time, the patients or their families question the authority of the decision," says Chen.

He says the process and decisions have to be credible and fair.

The regulation was intended to find a better legal way to resolve disputes between hospitals and patients -- but it does not seem to be working.

According to data supplied by Yin, a survey conducted by Jinan University among 4,062 medical workers showed that about 15 per cent of them have been beaten by disgruntled patients or their relatives in the past year.

"Some people adopt drastic measures or even violence against medical workers," Chen says. "But no law is available to protect them and their hospitals."

According to Chen, in some extreme cases, the relatives of dead patients have even refused to remove bodies from hospital wards for up to a week, severely disrupting operations of the hospitals.

Increased fees

Increased fees due to medical insurance reform has greatly raised patients' expectation for hospitals. It is hard for them to accept that things can go wrong.

On the other hand, doctors should never cover up their mistakes by using defects in the law, argues Chen.

"More understanding and communication between patients and hospitals are needed."

(China Daily March 30, 2004)