Child’s Lawsuit ‘Forces’ China to Face Government Role in AIDS Crisis
A lawsuit on behalf of a 10-year-old boy infected with HIV through a blood transfusion has "force[d]" the Chinese government to acknowledge its role in the spread of the virus that could infect "hundreds of thousands" of Chinese, reflecting a change in the Chinese legal system, which has "long been subservient to the Communist Party," the Washington Post reports. The HIV/AIDS epidemic in China spread "quickly" during the 1990s due in large part to "government-owned businesses that paid poor farmers to donate blood and used unsafe procedures to collect it." The lawsuit, filed on behalf of 10-year-old Li Ning from Xinye County in central Henan province, "go[es] to the heart of the government's situation, pitting its rhetoric about legal reform ... against a desire to escape blame for a health crisis that could shake public confidence in the party," the Post reports. Late last year, in an "extraordinary" ruling, a Nanyang judge ordered the Xinye County Health Department to pay Li about $47,000, a judicial "milestone" in a country where only 10 years ago it would have been "unthinkable for an ordinary person to sue" the government, according to the Post. The number of civil lawsuits has "more than doubled" over the last decade, "jump[ing]" by a third last year alone to 4.7 million, a result of "years of government trumpeting about legal reforms and the rule of law" and greater exposure to "Western legal concepts" in movies and books. Five HIV-infected Chinese children, including Li, have filed lawsuits against hospitals or health departments, and four of those children have been awarded judgments; however, Li is the only one so far to receive any compensation. Similar lawsuits have been filed by several adults, "but only the cases involving children have received attention in the state-run media," the Post reports.
Li is thought to have contracted the virus in February 1996. After falling off a roof, he received a blood transfusion at Xinye County People's Hospital. His condition "worsened" a month later. After running more tests, doctors in Nanyang discovered his serostatus. At that time, his family "knew little" about HIV and began lobbying government agencies for help. "All we got was, 'It's not our concern,' or 'We'll look into the case. Go home and wait,'" Wen Haifeng, Li's mother, said. The "state-run" media was also uninterested in the story until Li's parents contacted the consumer rights hotline of Chinese Central Television in Beijing. After the family spoke to the press, the county offered to pay them $18,000 for medical expenses if they agreed to withdraw the interview. The settlement would not cover a year's worth of treatment for Li. The family decided to sue and eventually found Zhang Qian, a law professor and lawyer from Zhengzhou, who agreed to represent them for free.
A 'Fortunate' Twist
There is no medical malpractice law in China, where judges "almost always rely on the findings of committees of medical experts" convened by the government, which "often have close ties to the defendants," the Post reports. Chinese law is also "unclear" as to who carries the "burden of proof" in malpractice cases. Li's family was "fortunate" because they had a document that named their reported blood donors, which provided some evidence against the health department, a local judicial official said. "There are many people in his situation, but they won't win in court because they have no evidence. The health department and the hospitals control it all, and there is nothing the judges can do about it," the official added. Li's father obtained the document by telling the local blood station that he needed it in order to "collect insurance." The document "meant that the county health department, which owned the blood station, could not deny its blood was used in the transfusion," the Post reports. The health department was "forced" to argue that the blood was not "tainted" but could not support that argument. Although Li's lawyer asked for $1.34 million, the amount he estimated was needed to cover Li's medical expenses and "psychological harm," the first judge who heard the case awarded the family $13,800, the amount of the then-defunct blood station's assets. On appeal, a higher court awarded the family a $47,000 settlement, which they accepted because "[t]he judge told us if we didn't accept it, he would just uphold the first judge's decision," Wen said. So far, the county health department has paid the family about $24,000, and although the family has asked the court to "force" the county to pay off the rest of the settlement, in China "parties in lawsuits often ignore court rulings." Li is currently receiving "experimental Chinese medicine" treatments because the family has "given up" on the expensive antiretroviral treatments they were seeking for him (Pan, Washington Post, 7/7).