Tuesday, 17 June 2014

The power of the medical lobby in reversing China's medical negligence law reforms

This week I came across a very revealing legal article (no, don't go away!)  that illustrates the power of the medical lobby in China - and also how the Chinese government is no longer a monolithic closed entity where laws are rubber stamped. 
The article by two leading law professors from China and Hong Kong describes how China medical negligence laws were overhauled by judges in 2002 because they were widely viewed as favouring doctors and hospitals over patients who had suffered from medical negligence. Until 2002 the burden of proof in any medical negligence case lay with the patient - in other words, they had to prove that the doctor had made an error that had resulted in harm.

As the article notes: "In practice, it was not uncommon that medical care providers, during the course of dispute resolution (court proceedings), denied patients ready access to their own health records.
Many medical care providers have reportedly submitted false or falsified medical records. In extreme cases, hospitals went as far as destroying the original records that evidenced the medical staff’s breach of standard of care and replaced them with fake ones."

In a radical move, the burden of proof requirement was reversed - medical providers had to prove that they had NOT made a mistake. This boosted the chances of patients successfully suing their doctor or hospital and not surprisingly led to a large rise in the number of medical negligence cases.
Doctors and hospitals hated the new law, and they claimed that it led them to practice defensive medicine and that it exposed them to a high financial burden.
The courts then decided to try adopt a "Third Way" compromise and developed amendments including a so-called "Article 59" that would balance the burden of proof requirement. The medical profession and hospitals, were not satisfied with this compromise, however, and wanted to veto Article 59 and revert to the former protections they had. It's worth quoting the article on this to give some background to the lobbying power:

"The most vocal advocates for removing Article 59 were two national-level medicine professional associations, that is, the Chinese Medical Doctor Association (CMDA) and the Chinese Hospital Association (CHA). The CMDA is the statutory self-regulatory body of all practicing physicians in China.64 The CMDA is also resourceful in terms of its government connections. Its president is a former vice minister of the MoH, and many of its vice-presidents are incumbent senior officials of the MoH and local BoHs. More notably, one of its two honorary presidents is a vice-chairman of the National People’s Congress Standing Committee (NPCSC). Renamed from the China Hospital Management Association, the CHA is the self-regulatory body of medical care providers (exclusive of rural medical clinics) in China, and is affiliated to the MoH. Its president is also a former MoH vice-minister."

In the end, the doctors won the day. When the medical negligence law was released for consultation they lobbied hard. When the amendment was debated at the NPCSC, the offending clause was dropped altogether. As the authors of the article conclude:
"The associations representing medical practitioners and medical care institutions exhibited remarkable ability to mobilize and lobby the national legislature. The outcome of the legislative process was thus unsurprisingly the removal of Article 59, a rule that the medical profession strongly disfavored."

Two conclusions from this article:
1. The medical profession and medical institutions have remarkable influence and lobbying power in China.
2. The process of  lawmaking in China is no longer behind-closed-door rubber stamping, but is subject to more open consultation and interest group lobbying. .

The article by Professor Yang Lixin of Renmin University and Professor Xi Chao of the Chinese University of HK is published in The China Review and can be downloaded here.

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