[Direct answer]In the Beijing area, there's no need to mechanically follow the sequence of "first appraisal, then litigation" for medical disputes. The order of the two can be flexibly arranged. According to Article 121 of the Civil Code of the People's Republic of China (effective from January 1, 2021), if a patient suffers damage during the medical treatment, and the medical institution or its medical staff are at fault, the medical institution shall bear the liability for compensation. In practice, whether to conduct a medical damage appraisal first depends on the evidence and strategy: if the evidence is sufficient, you can directly file a lawsuit and apply for an appraisal during the litigation; if there are major disputes and the responsibility needs to be clarified, you can also first commission an appraisal and then decide whether to litigate. It is recommended to first seal the medical records, and the relevant procedures can be referred to for reference.Personal injury and medical disputesColumn.

1. Problem background and typical scenarios

Medical disputes commonly occur in several situations: first, surgical complications, misremoval or miscutting of organs, and other medical treatment errors; second, misdiagnosis, missed diagnosis, and delayed treatment; third, medication or infusion errors, and hospital-acquired infections; fourth, childbirth and neonatal injuries; fifth, harm caused by defective medical products. The difficulty of providing evidence varies greatly in different situations. When handling similar cases in the Beijing area, patients usually first communicate with the hospital or apply for a technical appraisal of medical accidents, and then decide whether to sue based on the conclusion. The relevant infringement path can be referred to for reference.Personal injury and medical disputesColumn.

II. Key points of contention

First, the focus is on the choice of appraisal path: whether to go through the Medical Association's technical appraisal of medical accidents or to entrust a judicial appraisal institution to conduct an appraisal of medical damages. The procedures and legal effects of the two are different. Second, the allocation of the burden of proof generally follows the principle of "he who alleges must prove", but Article 1222 of the Civil Code of the People's Republic of China stipulates three presumptions of fault. Third, whether the appraisal should be conducted first. The law does not mandate that an appraisal must be conducted before filing a lawsuit. Fourth, disputes over the authenticity of medical records. Altering or losing medical records will affect the determination of liability. Fifth, the statute of limitations. According to Article 188 of the Civil Code, it is three years from the date when the victim knows or should have known that his rights have been infringed. For cases involving illegal medical practice, etc., reference can be made to relevant provisions.Criminal defenseColumn.

III. Professional analysis by Henglue Law Firm

Based on the practical experience of lawyers handled by our firm, the most common pitfalls in medical disputes lie in medical records and statutes of limitations. Common risks include: failing to seal and copy medical records in a timely manner, and the hospital retroactively recording information after the fact, leading to disputes over authenticity; patients claiming rights after the three-year statute of limitations has passed, with the other party raising a statute of limitations defense; incomplete appraisal materials leading to appraisal rejections or unfavorable opinions; and choosing the wrong appraisal path, wasting time. Our lawyers advise that, upon the occurrence of a dispute, it is essential to seal and copy all medical records immediately to secure objective evidence. Then, based on a preliminary determination of fault, choose either appraisal or litigation to avoid initiating litigation hastily when evidence is lacking. For cases involving potential criminal offenses, simultaneous assessment of reporting to the police and pursuing incidental civil claims should be conducted.

IV. Practical suggestions and legal basis

Action recommendations: First, immediately seal and copy the outpatient and inpatient medical records and imaging materials; Second, consult with the hospital or apply for a technical appraisal of medical accidents to clarify responsibilities; Third, after suing, apply to the court for a judicial appraisal of medical damage; Fourth, pay attention to the three-year statute of limitations and claim in time under special circumstances; Fifth, distinguish between contractual liability and tort liability and choose one to claim. In terms of legal basis, Article 121 of the Civil Code of the People's Republic of China stipulates the liability for medical damage caused by negligence, Article 122 stipulates three presumptions of negligence, including concealing, forging, and altering medical records, and Article 188 establishes a three-year statute of limitations. For related procedural details, please refer to the relevant provisions.Personal injury and medical disputesColumn.

5. Henglue Law Firm's Reminder

Risk Warning: Firstly, sealing the medical records is a crucial first step, and delaying it may easily put you in a passive position. Secondly, the appraisal of medical damages is not a prerequisite for litigation, and it can be applied for during the litigation process. Thirdly, the three-year statute of limitations may require precise calculation due to continuous treatment, so don't miss it. Fourthly, the appraisal conclusion directly affects the compensation, so you should pay attention to the appraisal materials and statements. It is recommended to organize the medical records and communication records as soon as possible, and if necessary, consult on the appraisal and litigation strategies.Special services and other casesThe column is evaluated by professional lawyers to determine the best approach to solving legal issues.

VI. Frequently Asked Questions

Q1: Is it better to conduct an appraisal first or file a lawsuit first in the case of a medical dispute?

There is no fixed answer, as it depends on the evidence and strategy. If the evidence is more sufficient and the liability is clearer, you can directly file a lawsuit and apply for a medical damage appraisal in the litigation process; if the dispute is significant and the fault needs to be clarified first, you can first commission an appraisal and then decide whether to litigate. The law does not mandate "appraisal before litigation". The key is to first seal the medical records and then choose a path based on preliminary judgments to avoid evidence loss.

Q2: What evidence do I need to prepare for a medical dispute?

First and foremost, there are medical records: outpatient records, hospitalization notes, surgical records, nursing records, imaging and examination reports. If a dispute arises, these records should be immediately sealed and copied. Secondly, there is evidence of the consequences of the damage, such as follow-up treatment records and disability appraisals. Thirdly, there are clues of negligence, such as abnormal medication and communication records. Finally, there are expense receipts. The more complete the materials are, the more beneficial it will be for the appraisal and litigation. For more details, please refer to the sections on personal injury and medical disputes.

Q3: How much does it cost to litigate a medical dispute in court?

The fees include appraisal fees, attorney fees, and litigation fees. The judicial appraisal fees for medical damages typically amount to several thousand yuan, which are prepaid by the applicant and shared based on responsibility; attorney fees are negotiated based on the complexity of the case and the subject matter; and litigation fees are charged in stages according to the amount of compensation requested. The costs of simply confirming liability and small-scale compensation are relatively manageable, while those involving disability and large-scale compensation increase proportionally with the subject matter. It is recommended to consult with a lawyer about the case and budget before making a decision.

Q4: How long does it usually take to resolve a medical dispute?

If the appraisal is conducted after the lawsuit is filed, the appraisal usually takes several months. The first-instance ordinary procedure of the lawsuit generally does not exceed six months, and the period of appraisal of medical damage will be extended accordingly if it is not included in the time limit for trial. The second-instance procedure takes about three months. Overall, it often takes more than a year. The key is to seal the medical records as soon as possible and file a lawsuit in time to avoid the statute of limitations defense. The enforcement depends on the hospital's fulfillment of its obligations and the insurance situation.

Q5: How should one handle a medical dispute?

The first step is to immediately seal and copy all medical records to preserve evidence. The second step is to communicate with the hospital or apply for a technical appraisal of the medical accident. The third step is to assess the fault and damages and decide whether to negotiate, mediate, or sue. The fourth step is to apply for a judicial appraisal of medical damages after suing to determine the proportion of liability. The fifth step is to claim compensation based on the appraisal conclusion. For cases that may involve criminal charges, consider reporting the case to the police at the same time, and refer to the criminal defense section for relevant criminal procedures.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit.Personal injury legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.