Can the No Fault Approach to Compensation for HIV Infection through Blood Transfusion be Ethically Justified?

Background

As a whole, China is a country with a relatively low prevalence of HIV, although in some provinces the HIV epidemic is more widespread. Up to the end of September 2013, there were 434,000 reported HIV positives and AIDS patients still alive, and 70,000 cases were newly detected.¹ According to the estimates jointly made by the Ministry of Health, UNAIDS and WHO in November 2011,² it was estimated that there were 780,000 (620,000–940,000) PLWHIV (people living with HIV), and the infection rate of total population was 0.058% (0.046%–0.070%). Among 780,000 PLWHIV, 46.5% contracted the virus via heterosexual transmission, 17.4% were MSM (men who have sex with men), 28.4% were IDU (injection drug users) (87.2% in Yunnan, Xinjiang, Guangxi, Guangdong, Sichuan and Guizhou provinces or autonomous region), 6.6% were infected through commercial blood collection and donation, blood transfusion and usage of blood products (92.7% in Henan, Anhui, Hubei and Shanxi provinces), and 1.1% via mother-child transmission. According these estimates, the number of living PLWHIV infected through blood transfusion or usage of blood products was about 51,480.³

All the victims who were infected with HIV through blood transfusion or usage of blood products, as well as those who sold or bought blood in a commercial (and now illegal) way, did experience unbearable hardships such as deteriorating health and quality of life, and personal humiliation. Their request for compensation and access to justice are legitimate and reasonable, and a just society should provide an opportunity for them to get access to justice. However, in the long term, they suffered further in their fight for justice. Only a few victims were compensated through negotiated settlements with blood centres and/or hospitals, judicial persuasions or decisions made by the local government. However, in the majority of cases, either the blood centre that provided the blood or the hospital that performed the blood transfusion refused to admit that HIV infection was caused by their wrongdoing. The court felt it was difficult, if not impossible, to collect the evidence to prove the causal relationship between the infection and the blood transfusion, and as a result many courts refused to entertain lawsuits on this topic (Anonymous 2009). Angered by the passive and indifferent attitude of the hospital and courts, many victims took the step of shangfang,⁴ appealing to a higher level of government or central government to request access to justice. However, a majority of such cases were not processed or were dismissed in the court (disqualified due to a lack of evidence). This caused very strong dissatisfaction and resentment among the patients, who doubted the judicatory justice and appealed to higher authorities or became aggressive. Clashes with the police or the security staff happened many times, which had the effect of “adding frost on snow” (xue shang jia shuang) or adding insult to injury, the result of which brought more suffering to the victims (Zhang 2008).

Inadequacies in the Laws Concerning the Compensation Mechanism

After the issuance and implementation of the Blood Donation Law of People’s Republic of China in 1998 (NPC 1988), HIV transmission through medical blood transfusion fell into two categories. The first was the violation of the Blood Donation Law, which led to HIV transmissions when the patient used contaminated blood or blood products. Cases of this category were often dealt with according to the Blood Donation Law. The victims are also entitled to bring a suit against the blood supply/transfusion facilities directly and claim for investigating their civil liabilities, based on the General Principles of the Civil Law (NPC 1987). The other category was the result of the limitations in current technologies to detect virus status in the blood provided by PLWHIVs during the window period of infection or with false-negative test results. Under this circumstance, the blood centres did not violate related regulations on blood transfusion, nor did healthcare facilities cause contaminations, and the donor usually had no knowledge about his infection...