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10.22.13

Who owns an amputated limb after surgery in China and why does that matter?

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O’Neill’s China Health Law Initiative Project enables me to learn from Chinese health professionals and health law lawyers about the dilemmas in practice they face due to lack of clear directives. The scenarios they tell may be a real eye-opener and a good brainteaser for you. Here is the one that impressed me the most from an expert meeting in China that aimed to develop legal guidance for health professionals in a Chinese hospital:

Who owns the amputated leg after a surgery? The patient or the hospital? Does it make a difference if the body part taken out from a surgery is a tooth, a placenta, or a finger? Shall they all be deemed as medical waste that should be managed by health care providers? Or can patients claim the property rights to their body parts?

About a decade ago, a patient took his amputated leg with him after signing a waiver at a hospital located in the downtown area of a big city in China. He changed his mind twenty minutes later and discarded the limb in a nearby trash can. Police stepped in immediately when the limb was found, and eventually tracked it to the hospital after hours of investigation to ensure that no murder had ever happened.

It is not clear whether this case led to the creation of medical waste disposal rules in China. Nowadays, China’s Ministry of Health treats removed body parts as “pathological waste”, a type of medical waste. Under the current medical waste management regulations, hospitals are responsible for collecting medical waste and sending them to a centralized incinerator.

Exceptions, however, always exist. Some violations of the medical waste management regulation are not punished because such practice is too common. For instance, a dentist may return an extracted tooth upon a patient’s request because he or she wants to keep it as a souvenir. In this case, a tooth is treated as a “tiny” body part. The health practitioners, however, need to be careful because there is a fine line where kidney stones, tumors, fingers, etc. may not be regarded as “tiny body parts”.

Also, the general disposal rule does not apply to the ownership of the human placenta, which in dried form is believed to be a precious traditional Chinese medicine ingredient that treats deficiency of blood. The Ministry of Health published a specific rule in 2005 to clarify that a woman owns the placenta in her childbirth unless the woman gives up or donates the placenta or if it can cause the spread of an infectious disease. This rule is intended to prevent hospitals or doctors from selling placentas to drug manufacturers.

Regulators also take religious belief into consideration in rulemaking. If a Chinese Muslim has his or her limb removed, the hospital will return the body part generally because cremation of body is forbidden in Islam.

Doctors and hospital managers are careful explaining the rule to patients because, in many parts of China, keeping the whole body for burial (even in the form of ash) is extremely important for the family. So in practice, hospitals face a dilemma: if amputated limbs are collected and incinerated to comply with current regulations, hospitals run the risk of getting blamed by some patients and their relatives for violating cultural norms. If hospitals incinerate amputated limbs separately and return the ash to the limbs’ original owners, however, hospital managers will likely receive administrative penalty for violating the medical waste management rules.

Such a predicament is not unusual for Chinese health professionals. They encounter similar situations quite frequently. More often than not, no clear solution is provided either because the regulations are not very well-established, or compliance with the law creates ethical problems. Satisfying every stakeholder (including patients, regulators, public, media…you name it) may be impossible and beyond doctors’ control. On the other hand, the increasing prevalence of hospital violence warns health professionals to increase their legal and ethical awareness to reduce potential risks in medical practice.

The ownership of an amputated limb question may sound funny, but Chinese health professionals need guidance in dealing with complicated-sometimes even conflicting laws and regulations-so that they will know what boundaries and flexibilities the current legal framework provides.

I am glad that O’Neill Institute is working with top-notched Chinese health and health law professionals to identify legal issues, to analyze current Chinese laws and regulations, and to offer answers in hopes of clarifying confusions that doctors and nurses may have. I believe that once the final product of this research project will save health professionals longing for solutions from digging out legal documents, if any, by themselves. And of course, I will make sure to keep my extracted wisdom tooth (souvenir!) in a safe place to prevent my dentist from getting into any trouble.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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