Summary of Key Points
Gao Jiechun, the director of the Hospital Management Research Institute at Fudan University, pointed out issues with the definition and application of the "medical malpractice crime" in China's Criminal Law, based on cases such as the Han Jie medical accident. These problems have led to doctors facing criminal prosecution for diagnostic errors (for example, Han Jie was sentenced to one year in prison), resulting in a "cicada effect" within the industry—where doctors are hesitant to treat high-risk patients and resort to more defensive practices. He advocates for abolishing this crime and incorporating extremely serious cases (such as intentional harm) directly into existing criminal laws (such as manslaughter or intentional injury). Routine medical malpractice should be resolved through civil compensation and administrative penalties, providing doctors with a reasonable margin of error and ultimately protecting the rights of patients.
Detailed Analysis
The Two Major Problems with the Medical Malpractice Crime
The core issue with the medical malpractice crime is the overly vague definition of "gross negligence," which lacks clear criteria. For instance, in the Han Jie case, the failure to diagnose a incarcerated hernia led to the child's death. However, according to the seven types of "gross negligence" listed in a 2008 document from the Ministry of Public Security (such as leaving one's post without permission or intentionally using prohibited drugs), Han Jie did not meet these criteria—yet he was still prosecuted after his family filed a report.
Even more unreasonable is the "triple punishment": the hospital had already made civil compensation (1.46 million yuan in the Han Jie case), and the Health Commission had imposed an administrative penalty (a six-month suspension from duty), yet the doctor still faced criminal prosecution and imprisonment. This means that doctors not only have to pay financial penalties but also suffer legal consequences, which is a significant deterrent.
The Key Reason for Abolition
The main reason for abolishing this crime is that it frightens doctors, which in turn harms patients:
- Patient shirking: After the Han Jie case, parents would take their children with stomach pains to four or five hospitals before finding one willing to treat them.
- Defensive medicine: To avoid responsibility, doctors may over-test patients (for example, ordering unnecessary CT scans) or refuse to treat critically ill patients.
- Brain drain in the industry: Professor Gao mentioned that his daughter is reluctant to study medicine due to the risks, and he fears the same might apply to his grandson. Without enough doctors, it is the general patients who will suffer.
He cited the example of a "80-cent prescription": In 2011, media coverage of using glycerin enemas to treat megacolon led to intestinal perforations in more than ten children nationwide due to parents refusing surgery. This shows how incorrect laws or public opinion can result in fatal consequences for patients.
International Experience
In many countries, there is no specific "medical malpractice crime":
- Common law systems (UK and US): Medical disputes are resolved through civil litigation (financial compensation). In extreme cases (such as intentional harm), the crimes of manslaughter or intentional injury are applied. The criteria for these charges are strict (proof of intent is required), so routine diagnostic errors do not result in criminal convictions.
- Civil law systems: Some countries stipulate that criminal proceedings are automatically terminated after civil compensation, preventing double punishment.
For example, in the Liu Xiangfeng case (intentional harm to a patient), the use of the "intentional injury" charge was uncontroversial because the nature of the act was clearly defined and different from routine medical errors.
Alternative Solutions
Professor Gao suggests:
- Abolish the medical malpractice crime: Routine medical malpractice should be handled through civil compensation and administrative measures (such as suspensions or warnings).
- Apply existing criminal laws to extreme cases: For instance, if a doctor intentionally harms a patient, they should be charged with intentional injury; if they know their actions will lead to death but still fail to act, they should be charged with manslaughter. These charges have clear boundaries and prevent innocent doctors from being wrongfully convicted.
- Raise the threshold for prosecution: Criminal cases of medical malpractice should only be handled by courts of higher jurisdiction to avoid arbitrary judgments by lower-level courts.
The Warning from the Han Jie Case
The outcomes of the Han Jie case, compared to previous cases like Li Jianxue and Wen Hong, highlight the lack of uniformity in legal application. Li Jianxue was acquitted eight years later, and Wen Hong was acquitted in the first trial, while Han Jie was sentenced to one year in prison. The root cause is the lack of a unified standard for "gross negligence," leading to inconsistent rulings from different courts.
It is also important to note that the private hospital where Han Jie worked was labeled as "deserving punishment," but Professor Gao emphasizes that the rights of private doctors should be protected as well. If private doctors face imprisonment for mistakes, public hospital doctors could soon follow. The entire industry must address this issue and push for legal improvements.
Conclusion
Medicine is not a perfect science, and doctors make mistakes. If doctors fear imprisonment for a single error, no one will dare to take risks in treating patients, which will ultimately harm the general public. Providing doctors with a reasonable margin of error does not mean tolerating errors; it allows them to treat patients confidently, which is the best way to protect patient rights in the long run.