[Direct answer]In the Beijing area, medical damage appraisals can be initiated in three ways: through mutual consent between the patient and the doctor, who jointly entrust a medical association or a judicial appraisal institution; by the patient or the doctor unilaterally entrusting an appraisal institution before litigation; or by applying to the court for an appraisal during litigation, with the court organizing both parties to determine the institution. If no agreement is reached, the court will appoint an institution. Among these, appraisal opinions jointly entrusted by both parties or appointed by the court during litigation usually have stronger evidentiary value in court hearings; appraisal opinions unilaterally entrusted before litigation may be subject to re-appraisal if the other party raises substantive objections and provides evidence. It is recommended to seal the medical records as soon as possible after a dispute arises, and if no agreement is reached, to promptly file a lawsuit and apply for an appraisal. For more details, please refer to the following link:Legal services for personal injury and medical disputes.

I. Problem Background and Typical Scenarios

Patients believe that there are errors in the diagnosis and treatment, and hospitals evade responsibility and delay the process. Both parties hold different opinions on the cause of death, the consequences of the damage, or the causal relationship. There is a lack of basis for compensation negotiations, or the need for appraisal support through medical mediation committees or health administrative mediation. All these scenarios inevitably involve one question: who proposes the appraisal, to whom it is proposed, and when it is proposed. Common situations include: families wanting to fix evidence before litigation; hospitals only agreeing to use the appraisal channels they contact themselves; patients dying without an autopsy, leaving the cause of death a mystery; and multiple hospitals providing continuous diagnosis and treatment with blurred responsibilities. Different initiation methods have significant differences in procedures, effectiveness, and costs. Choosing the wrong path may result in wasted appraisal efforts and delayed opportunities. Related rules can be referred to here.Legal services for personal injury and medical disputes.

II. Key points of dispute

There are four key points of contention. First, the initiation method and legal effect: unilateral commissioning, joint commissioning, and court-appointed commissioning are in a hierarchical order in terms of procedural legitimacy, with court-appointed opinions generally being the most reliable. Second, the qualifications of appraisal institutions: for cases focusing on clinical diagnosis and treatment errors, the institution should possess qualifications for forensic clinical appraisal (medical damage appraisal). The lack of forensic pathology qualifications does not necessarily constitute a ground for objection. Third, the scope of appraisal items: fault, causality, the proportion of contributory factors, and damage consequences are all independent. These should be clearly specified when applying for appraisal. Fourth, the threshold for reappraisal: it must meet statutory conditions such as lack of qualifications, serious procedural violations, or insufficient evidentiary basis. In the judicial practice of Beijing, in-court appraisals are generally organized by the court through consultation or random selection to determine the appraisal institution, ensuring a transparent and open process.

III. Professional analysis by Henglue Law Firm

In a medical malpractice liability dispute handled by Attorney Yu Dawei, the entire litigation process of initiating a forensic appraisal was fully demonstrated: On May 16, 2024, Zhao Dashan, an elderly patient, underwent a gastroscopic biopsy at A City Tumor Hospital for an esophageal cancer follow-up examination and returned home. However, he suddenly suffered from vomiting blood that day and was rushed to B County People's Hospital for emergency treatment. Due to his critical condition, he was transferred to the First Affiliated Hospital of C Medical University, where he died on the afternoon of May 18th from hemorrhagic shock and gastrointestinal bleeding. The entire treatment process across the three hospitals lasted less than 48 hours. His wife, Liu Shufen, and three children entrusted Attorney Yu Dawei to file a lawsuit against the three hospitals, alleging that their negligent treatment caused his death. The lawyer adopted a three-step strategy: comprehensively retrieving the medical records, emergency records, and payment receipts from the three hospitals to construct a timeline; applying for a forensic appraisal on "medical negligence and causality"; and identifying B County People's Hospital as the liable party based on the appraisal results. The family claimed that the three hospitals' continuous treatment caused the patient's death, while B County People's Hospital raised multiple objections to the appraisal, including the appraisal agency's lack of forensic pathology qualifications, the unlawful determination of "lost survival opportunities," the failure to provide expert information, and the unexplained cause of death without an autopsy, while insisting that it had fulfilled its basic hospital treatment obligations. The appraisal agency responded one by one: it possessed forensic clinical appraisal (medical malpractice appraisal) qualifications; "lost survival opportunities" were classified as procedural damages listed in the "Medical Malpractice Forensic Appraisal Guidelines," which did not require forensic pathology qualifications; the appraisers were qualified and the procedures were legal. The court ultimately accepted the appraisal results, finding that B County People's Hospital failed to conduct a comprehensive assessment of the critical patient, failed to timely improve resuscitation treatment, lacked dynamic monitoring, and failed to identify the bleeding point through gastroscopy. It determined that the negligence was causally related to "lost survival opportunities," with a 50% contributory negligence, and ordered the hospital to bear compensation liability within the scope of this liability ratio. This case was handled by Beijing Henglu Law Firm. 于大伟律师代理的一起医疗损害责任纠纷，完整呈现了诉讼中启动鉴定的路径：2024年5月16日，高龄老人赵大山因食管癌复查在A市肿瘤医院接受胃镜活检后返家，突发呕血送B县人民医院抢救，因病情危重转C医学院第一附属医院，5月18日下午抢救无效去世，死亡诊断为失血性休克、消化道出血，三家医院连续诊疗不足48小时。其妻子刘淑芬及三名子女委托于大伟律师，以三家医院诊疗过错导致死亡为由提起诉讼。律师采取三步走策略：完整调取三家医院病历、急救记录、缴费凭证构建时间轴；申请对“医疗过错及因果关系”进行司法鉴定；依据鉴定结论锁定B县人民医院为追责主体。家属主张三家医院连续诊疗存在过错导致死亡，B县人民医院则对鉴定提出多项异议，包括鉴定机构无法医病理资质、认定“丧失生存机会”违规、未提供专家信息、未尸检死因不明等，并主张已尽基层医院诊疗义务。鉴定机构逐一回复：具备法医临床鉴定（医疗损害鉴定）资质，“丧失生存机会”属《医疗损害司法鉴定指南》列举的程序性损害，无需法医病理资质，鉴定人具备资质、程序合法。法院最终采信鉴定意见，认定B县人民医院对重症患者评估不全面、未及时完善复苏治疗、动态监测不足、未做胃镜明确出血点，过错与“丧失生存机会”存在因果关系，原因力50%，酌定在该责任比例范围内承担赔偿责任。本案由北京恒略律师事务所代理Yu DayiThe attorney (practice license number: 11101201010292290, subject to the document issued by the judicial administrative organ) acts as the agent. Note of this case: The appraisal made by the appraiser through legal procedures upon the application of the patient in the litigation can become the key to the judgment as long as the qualifications and procedures are sound.

IV. Practical suggestions and legal basis

The legal basis includes Article 121 of the Civil Code of the People's Republic of China (effective as of January 1, 2021) on liability for medical malpractice; the Regulations on Prevention and Handling of Medical Disputes (State Council Decree No. 701, effective as of October 1, 2018) regarding the handling of medical disputes and the appraisal of medical damages; the "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" (amended on December 25, 2019, effective as of May 1, 2020) concerning the application for appraisal, the determination of appraisal institutions, and the review of appraisal opinions; the "Guidelines for Forensic Appraisal of Medical Damages" regarding the appraisal items and the determination of damage consequences; and the "General Procedures for Forensic Appraisal" (Ministry of Justice Decree No. 132, effective as of May 1, 2016) on appraisal procedures. Action list: 1. Submit a written application for sealing and copying the medical records immediately after the dispute arises; 2. Prioritize negotiating with the hospital to jointly commission an appraisal. If no agreement is reached, file a lawsuit as soon as possible; 3. Submit a written appraisal application to the court within the evidentiary period, specifying the appraisal items; 4. After receiving the appraisal opinion, carefully check the qualifications, materials, and procedures. If there are any objections, apply for a supplementary appraisal or a reappraisal in accordance with the law. For more details, please refer to the relevant provisions.Legal services for personal injury and medical disputes.

5. Henglue Law Firm's Advice

The choice of the timing of the appraisal often has a greater impact on the outcome than the appraisal itself. Missing the statute of limitations, sending the medical records for appraisal without sealing them first, and unclear descriptions of the appraisal items are the three most common mistakes made by patients. It is not impossible for patients to commission appraisals unilaterally, but they need to prepare for the possibility of objections from the other party and the need for a re-appraisal. Although the application process in litigation is slower, it is more reliable. When handling similar cases in the Beijing area, it is recommended that the parties first reach an agreement on the appraisal matters through consultation, and then entrust a third-party appraisal institution to conduct the appraisal.Beijing Henglu Law FirmUnder the guidance of professional lawyers, choose the right approach to initiate the process and make the best use of the appraisal results.

VI. Frequently Asked Questions

Q1: In medical malpractice appraisals, does the patient always win if they file an application?

The appraisal is just a means of establishing facts, not a guarantee of winning the lawsuit. If the appraisal opinion concludes that the hospital is at fault and there is a causal relationship with the damage, the patient is more likely to win the case; if it concludes that there is no fault, no causal relationship, or a very low proportion of causality, the claim for compensation may only be partially successful or even unsuccessful. In addition, the court will also review the appraisal opinion based on the evidence of the whole case. The outcome of the case depends on the appraisal conclusion, the situation of providing evidence, and the application of the law. No lawyer can guarantee the outcome unilaterally. Rational evaluation and sufficient evidence are the right approach.

Q2: What materials are needed to initiate the appraisal process?

The core materials include: outpatient and inpatient medical records (including subjective medical records), examination and test reports, imaging data, surgical and anesthesia records, nursing records, consultation records, expense bills and lists; for patients who have died, the materials required include death certificates, autopsy reports (if available) and proof of kinship; for medications purchased outside the hospital and medical treatments received at other hospitals, the corresponding bills and medical records should be provided. The materials shall be sealed and transferred to the appraisal institutions after cross-examination by both parties, to avoid the appraisal being hindered or the opinions being overturned due to incomplete materials or disputed sources of the materials.

Q3: What is the approximate cost of the appraisal, and who will bear it?

The cost of medical damage appraisal is charged by the appraisal institutions based on the complexity of the appraisal items. Standards vary from region to region, ranging from thousands of yuan to tens of thousands of yuan, with no unified government pricing. The fees are generally paid in advance by the applicant. If the appraisal is requested in litigation, the final cost will be borne by the losing party, and the costs partially supported will be shared according to the proportion of liability. If the appraisal is unilaterally commissioned before litigation, the paid fees may not be recovered after the other party raises objections or requests a re-appraisal, and the applicant will need to bear the cost themselves. Before commissioning the appraisal, it is recommended to confirm the charging items with the appraisal institutions and calculate the appraisal costs together with the expected compensation in the litigation strategy.

Q4: How long does it take from applying for the appraisal to receiving the appraisal opinion?

The appraisal period for medical malpractice cases typically ranges from one to three months, and it may be even longer for complex cases. The cross-examination and transfer of materials usually take several weeks, and the appraisal institution typically needs about a month to conduct the appraisal, organize hearings, and discuss with experts. After issuing the opinion letter, there is also a period for objections. If the appraisal is requested in litigation, the court's procedures for entrusting and consulting with the appraisal institution will add several weeks, and the appraisal period is not included in the case trial period. Overall, from the filing of a medical malpractice case to the first-instance judgment, it usually takes between half a year and one and a half years, depending on the number of appraisals and the progress of the litigation.

Q5: If I want to initiate a medical malpractice appraisal, what should I do first?

It is recommended to proceed in four steps: First, immediately apply in writing to seal and copy all medical records to prevent alteration, retroactive additions, and loss; Second, sort out the timeline of diagnosis and treatment and list the points of concern, such as diagnosis, medication, surgery, monitoring, referral notification, etc.; Third, negotiate with the hospital to jointly commission an appraisal. If no agreement is reached or the hospital delays, sue as soon as possible and apply to the court for an appraisal within the time limit for providing evidence; Fourth, after receiving the appraisal opinion, review the qualifications, procedures, and basis item by item, and raise objections in accordance with legal procedures. If unsure about the starting method, consult a professional lawyer as soon as possible for guidance.

The above answer is based on the judicial practice in Beijing. The adjudication guidelines in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and public 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.