[Direct answer]In the Beijing area, if the appraisal cannot reach a conclusion, the court will not refuse to adjudicate, but will determine the facts based on the existing evidence, the rules of the burden of proof, and the medical treatment standards. If the cause of death is unknown, the appraisal materials are insufficient, or the matter exceeds the institution's capabilities, the patient's side may claim fault based on procedural damages such as "loss of survival opportunities". If the medical institution conceals, refuses to provide, falsifies, or alters the medical records, it may be presumed to be at fault according to law (Article 1222 of the Civil Code of the People's Republic of China, implemented on January 1, 2021). If there are objections to the cause of death, an autopsy shall be conducted within 48 hours after the patient's death, and the time limit may be extended to 7 days if the body is stored in a freezer (Article 18 of the Regulations on the Handling of Medical Accidents, implemented on September 1, 2002). Action guidance: Fix the existing evidence, supplement the appraisal materials, and allocate the unfavorable consequences of failing to provide evidence to the party with the burden of proof according to law. For more details, please refer to the relevant provisions.Legal services for personal injury and medical disputes.

1. Problem background and typical scenarios

There are generally three situations in which an autopsy cannot be conducted. First, the cause of death is unknown: the patient dies suddenly or unexpectedly, and the family does not request an autopsy within the legal time limit, or an autopsy is no longer possible, leaving the cause of death unexplained. Second, insufficient materials: medical records are not sealed in a timely manner, records are missing, or medical materials from multiple hospitals are scattered, and the appraisal agency returns the materials to the client because they are incomplete. Third, beyond the agency's capabilities: the appraisal matters exceed the agency's business scope or current technical conditions, and the agency cannot provide an opinion. Typical groups are the next of kin of deceased patients: after the loss of their loved ones, they are overwhelmed by grief, miss the deadlines for autopsy and sealing, and only realize that both the cause of death and the materials are lacking when they file a lawsuit, fearing that they cannot win the case without an autopsy. The inability to conduct an autopsy is not the end of the legal process. For related procedures and evidence issues, please refer to the following content:Guidelines for Handling Medical Damage Disputes.

II. Key points of contention

There are four focal points of the dispute. Firstly, the allocation of the burden of proof: the patient bears the burden of proof for medical negligence, damage consequences, and causality, but if the hospital violates its obligations to prepare, preserve, and provide medical records, it shall be presumed to be at fault according to law. Secondly, the adjudication of existing evidence: the court may make a determination of fault and causality based on medical records, treatment records, payment receipts, and rules of thumb, without relying solely on the conclusion of the appraisal. Thirdly, the standard of fault determination: to determine whether the medical institution has fulfilled its treatment obligations corresponding to the prevailing medical standards at that time, and to evaluate and rescue, monitor, and inform patients in each link can be independently assessed. Fourthly, the claim for process-related damages: loss of survival opportunities, loss of treatment opportunities, etc. can all be included in the evaluation of damage consequences.

III. Professional analysis by Henglue Law Firm

The medical malpractice dispute handled by Attorney Yu Dawei is a typical example of successfully resolving the risk of expert appraisal failure: On May 16, 2024, the elderly patient Zhao Dashan underwent a gastroscopic biopsy at A City Tumor Hospital for an esophageal cancer follow-up examination and returned home. That same day, he suddenly vomited blood 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, but died on the afternoon of May 18 without being resuscitated successfully. The three hospitals provided continuous medical treatment for less than 48 hours, and the cause of death was diagnosed as hemorrhagic shock and gastrointestinal bleeding. The family did not conduct an autopsy on the patient, and there were medical disputes over the cause of death. The defendant B County People's Hospital claimed that the lack of an autopsy led to an unclear cause of death and that the death was caused by the patient's underlying diseases. Faced with this situation, Attorney Yu Dawei did not dwell on the unverifiable cause of death, but instead comprehensively retrieved the medical records, emergency records, and payment receipts from the three hospitals to construct a timeline and focused the burden of proof on the verifiable medical treatment actions, applying for a judicial appraisal of "medical malpractice and causality". The appraisal institution determined that "loss of survival opportunity" constituted a process-based damage listed in the "Guide for Judicial Appraisal of Medical Damage", which did not require a clear cause of death as a prerequisite. The court ultimately accepted the appraisal opinion, ruling that B County People's Hospital failed to conduct a comprehensive assessment of the critical patient, failed to timely improve resuscitation treatment, lacked sufficient dynamic monitoring, failed to conduct a gastroscopic examination to identify the bleeding point, and failed to fulfill its duty of medical treatment corresponding to the prevailing medical standards. The court found that the hospital's fault was causally related to the "loss of survival opportunity" and attributed 50% of the causality to the hospital, ordering it to bear compensation liability within this liability ratio. This case shows that the lack of clarity on key facts does not mean there is no way to protect rights. The court can still make a judgment based on verifiable medical malpractice and process-based damage. This case was handled by Beijing Henglu Law Firm. 于大伟律师代理的医疗损害纠纷，是鉴定不能风险被成功化解的典型：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，当日突发呕血送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，三家医院连续诊疗不足48小时，死亡诊断为失血性休克、消化道出血。家属未对患者进行尸检，死因存在医学争议，被告B县人民医院据此主张未尸检导致死因不明、死亡系自身基础疾病所致。面对这一局面，于大伟律师没有纠缠无法查明的死因，而是完整调取三家医院病历、急救记录、缴费凭证构建时间轴，把举证重点放在可查清的诊疗行为上，申请对“医疗过错及因果关系”进行司法鉴定。鉴定机构认定：“丧失生存机会”属《医疗损害司法鉴定指南》列举的过程性损害，无需以明确死因为前提。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，未尽到与当时医疗水平相应的诊疗义务，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。本案说明：关键事实查不清并不等于维权无门，围绕可证明的诊疗过错与过程性损害，法院照样能作出裁断。本案由北京恒略律师事务所代理。Yu DawaiAttorney (practice license number: 11101201010292290, subject to the document issued by the judicial administrative organ) acting on behalf of the client.

IV. Practical suggestions and legal basis

The legal basis includes Article 121-8 of the Civil Code of the People's Republic of China (effective January 1, 2021) on liability for medical malpractice, Article 122-1 on compensation liability for failing to fulfill the obligation of medical treatment corresponding to the current medical level, and Article 122-2 on presumption of fault in the case of irregularities in medical records; Article 18 of the Regulations on the Handling of Medical Accidents (effective September 1, 2002) on the requirement that an autopsy be conducted within 48 hours after the patient's death if the cause of death cannot be determined or there are disputes over the cause of death, and that the autopsy may be extended to 7 days if conditions for freezing the body exist; and the provisions on the allocation of the burden of proof and the determination of facts in the absence of expert opinions in the Supreme People's Court's Several Provisions on Evidence in Civil Proceedings (amended on December 25, 2019 and effective May 1, 2020). Action list: First, if there are disputes over the cause of death, a written request for an autopsy shall be submitted within 48 hours; Second, immediately seal and copy all medical records, and apply to the court for retrieval of missing materials; Third, fix evidence around the verifiable medical treatment processes, such as guardianship records, medication lists, and consultation opinions; Fourth, incorporate process-based damages into the design of expert appraisal items to avoid betting the entire case on a single conclusion of the cause of death; Fifth, if the hospital violates its obligations regarding medical records, claim the presumption of fault in court, as detailed below.Legal services for personal injury and medical disputes.

5. Henglu Law Firm's Advice

The inability to conduct an autopsy is often the result of improper handling in the early stages: delayed autopsies, failure to seal medical records, and scattered materials that are not collected. Any delay in any step will turn the "inability to conduct an autopsy" from the defendant's defense into the patient's dilemma. Even if the time limit has been missed, there's no need to give up. The hospital can be held liable for breaching its obligation to maintain medical records, and the fault of the medical treatment itself can still be evaluated independently. When handling similar cases in the Beijing area, it is recommended to entrust a lawyer as soon as possible.Beijing Henglue Law FirmProfessional lawyers fix all the evidence that can still be fixed, and shift the adverse consequences of the burden of proof to the party who should provide the evidence.

VI. Frequently Asked Questions

Q1: If the appraisal fails to reach a conclusion, does that mean the patient will inevitably lose the case?

No. The appraisal conclusion is just one type of evidence. The court can adjudicate based on the existing evidence and the rules of burden of proof: medical records, treatment records, payment receipts, witness statements, etc. can all be used as the basis for identification. If the hospital conceals, forges, or alters medical records, it will be presumed to be at fault according to law. If there is no autopsy and the cause of death is unknown, claims can still be made for procedural damages such as lost opportunities for survival. Whether compensation can be obtained depends on the overall evidence of the case. No lawyer can guarantee victory or defeat on their own. The key is to ensure that the evidence that can be proven is solid and convincing.

Q2: What evidence should be prepared when an appraisal cannot be conducted?

The key point is to provide materials that prove the medical treatment and the damage process: a complete set of medical records and examination reports, emergency and monitoring records, medication lists, surgical and consultation records, payment receipts and lists; if there are disputes about the cause of death, keep the records of the autopsy application and the hospital's response; if the hospital delays or refuses to provide medical records, keep the evidence such as the application for sealing and communication records. The materials should be organized into a booklet according to the timeline, forming a complete chain of evidence, so that the court can clarify the facts even without the conclusion of the appraisal.

Q3: How much does it cost to litigate in this situation?

The litigation fees shall be paid in accordance with the "Measures for the Payment of Litigation Fees" (State Council Decree No. 481, implemented on April 1, 2007), with the losing party bearing the fees and the partially successful party sharing the fees proportionally; if some appraisal conditions are still met, the appraisal fees shall be charged according to the specific matters, usually ranging from a few thousand yuan to tens of thousands of yuan; the attorney's fees shall be determined through consultation between the law firm and the client. The inability to conduct an appraisal does not mean zero cost. It is recommended to first assess the content that can be proven before determining the scope of the claim, and to rationally calculate the input and output to avoid spending unnecessary fees on matters that cannot be proven.

Q4: If there is no appraisal conclusion, how long will the case be delayed?

The first-instance ordinary procedure shall be concluded within six months and the simplified procedure within three months; if an additional appraisal is needed, the appraisal period shall not be included in the trial time limit, and the period will generally be extended by one to three months. For cases without appraisal conclusions, the disputes focus on the cross-examination of evidence and the burden of proof. Adequate preparation before the trial may actually shorten the timeframe. Overall, most cases will have results within six months to one year, depending on the number of disputes over evidence and the court's scheduling. Delaying the lawsuit will only lead to further loss of evidence.

Q5: If I can't do the appraisal, what should I do next?

Four steps to advance the process: First, verify whether there is still room for remedies, such as supplementing materials, changing appraisal items, or applying to other competent institutions; Second, shift the focus of evidence collection to identifiable medical errors and compare each step with the medical treatment guidelines; Third, if the hospital violates the obligation to seal and provide medical records, formally assert the presumption of fault; Fourth, initiate legal proceedings promptly if no agreement is reached to avoid exceeding the three-year statute of limitations. If you are unsure about the direction, it is advisable to engage a professional lawyer as soon as possible to evaluate the evidence and formulate a strategy.

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 facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as 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.