XIANNING, China: decade old.
The Associated Press
1/7/02 11:08 AM


The nation's parliament has debated how to amend these laws for at least two years. But in the meantime, judges and some legislatures around the country are essentially making their own amendments on the fly. In Sichuan, the court in the city of Luzhou shocked the nation's legal and medical circles with an opinion stating that the court could determine whose appraisal to use as evidence, rather than taking the medical board's word as law. The provincial legislature in coastal Zhejiang amended a consumer-protection law last year to guarantee patients' access to their medical records.

Other judges have sought to inject more fairness into the process by seeking appraisals from independent experts, rather than the official medical boards, or calculating compensation based on laws for personal injury or traffic accidents, which allow for more generous awards to victims.

In the groundbreaking case of the brain-damaged Wuhan twins, the provincial high court upheld a lower court's finding for the babies' family and granted an award of $350,000. In a 15-page ruling, the judge sidestepped malpractice law altogether and relied instead on the civil code, which guarantees compensation for bodily injury. The judge also said an appraisal committee's approval wasn't necessary in such a case.

While such rulings technically have no impact beyond their own jurisdictions, they are closely watched and may embolden judges elsewhere. People in legal circles now refer to one judge or another as a member of the "Luzhou faction," shorthand for the progressive stance symbolized by the Sichuan court.

In a sign that local experimentation is encouraged, the country's Supreme People's Court sometimes issues documents sanctioning rulings made by lower courts. In October 2000, at a meeting to discuss civil judgments, a vice president of the supreme court announced that courts could decide malpractice cases according to civil law, and that appraisals weren't necessary -- echoing precisely the conclusion of the judge in the Wuhan twins case several months before. Last year, the supreme court issued a judicial interpretation supporting the awarding of "spiritual damages" when a person's rights to life and health were violated.

The changes haven't reached all corners of China's court system. In Shanghai, an up-and-coming 33-year-old trade official named Xu Yong says he has petitioned local medical boards for more than a year to pass an appraisal that a hospital botched a routine circumcision in October 2000, just before Mr. Xu planned to marry. Now, it is painful for him to walk and bathe and impossible for him to father children. But without such an appraisal, the local court hasn't moved forward on his case. "Since this happened to me, I have seen how black society really is," says Mr. Xu, his voice rising in anger as silent co-workers type on keyboards in neighboring cubicles.

But other families still have hope in the courts. In the damp, sooty mining town of Huangshi, not far from Wuhan, a three-year-old girl named Tong Linxin spends most of her days lying on a sheet of cardboard in her grandparents' house, unable to stand, walk or speak. In March 1999, shortly after her first birthday, her grandparents took her to the hospital with a fever.

The doctors diagnosed a respiratory infection or blood poisoning, prescribed antibiotics and sent her home. Not until nearly two weeks and many hospital trips later did they do a spinal tap that determined she had tubercular meningitis, in which tuberculosis spreads to the membranes covering the brain and spinal cord and can cause brain damage, paralysis or death if not caught early enough.

"She is almost four years old, yet she cannot speak and cannot walk. What is to be done?" asks the girl's grandfather, Tong Huogen, a retired coal miner with bristly black hair who has managed to plow through a shelf of medical textbooks in order to understand his granddaughter's condition.

In a cramped bedroom behind the kitchen, stacks of medical documents chart the deterioration of her nervous system, but it's clear enough just from holding Tong Linxin. Lacking a healthy child's buoyancy, she is dead weight in a person's arms, her arms flopping, her feet lumpy and misshapen from never having been walked on. There is a bald spot on the back of her head where, her grandfather says, she bangs her head on the wall unless she is made to stop.

Two medical appraisal boards, at the city and provincial level, have ruled that Tong Linxin wasn't the victim of medical malpractice. The Huangshi City Central Hospital says in court filings that her symptoms didn't suggest tubercular meningitis and that an earlier vaccination seemed to rule it out.

In late 2000, her family sued the hospital, and the city court agreed to hear the case.

Government bodies asked to weigh in on the case are showing greater independence as well. Last July, the province's public-security bureau concluded that the hospital had forged much of Tong Linxin's medical record, in some cases substituting pages, in others blotting out words. An official in the hospital's medical treatment department says, "For senior doctors to add to or change the medical records of junior doctors is normal."

The case has gone through three hearings and the court has asked the family to provide an estimate of likely medical fees over the course of the child's life. The family is seeking $400,000.


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