[Direct answer]In the Beijing area, either of the two timing options is acceptable, but the key factors are the degree of evidence fixation and the other party's cooperation. - **Pre-litigation commissioning**: The patient can commission an expert on their own or jointly with the hospital. This approach is faster and allows early evidence fixation, but if the other party raises valid objections and provides counter-evidence during the litigation, the court may permit a re-examination. Jointly commissioned opinions are generally more credible than unilaterally commissioned ones. - **In-litigation application**: The court organizes both parties to jointly select an expert institution. If no agreement is reached, the court will appoint one. This approach offers greater procedural stability and stronger evidentiary force, but the process from case filing to issuing the expert opinion takes longer. - **Action guidance**: First, seal and copy the medical records. If joint commissioning is possible, prioritize pre-litigation handling. If no agreement is reached or the other party may deny the evidence, apply to the court for commissioning within the evidentiary period and pay attention to the three-year statute of limitations. For more details, please refer to the following link:Legal services for personal injury and medical disputes.

I. Problem Background and Typical Scenarios

The choice of timing is a frequent dilemma in medical rights protection. Families are worried that hospitals may delay the process and want to unilaterally conduct appraisals to fix evidence before negotiation; they also fear that unilateral appraisals may not be recognized, wasting money; some worry about exceeding the three-year statute of limitations and want to sue first to secure the process; and some, after mediation by the Medical Dispute Mediation Committee, find that the other party only recognizes appraisals from specific channels. There are two common mistakes: first, sending materials for appraisal hastily without sealing the medical records, with unclear sources of the materials; second, delaying the process for too long and missing the statute of limitations or the best conditions for appraisal. There is no standard answer to the timing issue, but there is a clear decision-making logic. Relevant appraisal procedures can be referred to for reference.Guidelines for the Appraisal Procedure of Medical Disputes.

II. Key points of contention

There are four main points of contention. Firstly, regarding evidentiary value: opinions jointly commissioned by both parties or commissioned by the court during the litigation process are generally more persuasive than those unilaterally commissioned before litigation. The latter require stricter cross-examination and review. Secondly, regarding cost burden: the cost of unilaterally commissioning an expert report before litigation is borne by the party itself, and the fee for a reassessment may not be recoverable. In contrast, the cost of a reassessment requested during litigation is prepaid by the requesting party and ultimately shared according to the outcome of the case. Thirdly, regarding procedural constraints: a reassessment during litigation must be applied for within the evidentiary period, with the expert institution determined by mutual agreement between the parties or appointed by the court, rather than being freely selected by the parties themselves. Fourthly, regarding the risk of a reassessment: if a unilaterally commissioned opinion is effectively challenged, it may need to be completely redone, which could prolong the litigation process and increase costs.

III. Professional analysis by Henglue Lawyers

The medical malpractice case handled by Attorney Yu Dawei demonstrates a prudent approach to applying for a forensic appraisal during litigation. 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. Later that day, he experienced vomiting 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, where he died on the afternoon of May 18. After the family retained Attorney Yu Dawei, the lawyer did not rush to initiate the appraisal process himself but adopted a three-step strategy: **First Step**: Secure and consolidate evidence. The lawyer comprehensively collected medical records, emergency treatment records, and payment receipts from the three hospitals to reconstruct the timeline of the case. **Second Step**: Precisely apply for a forensic appraisal. During the litigation, the lawyer applied for a judicial appraisal of "medical negligence and causality" through legal procedures to determine the appraisal institution. **Third Step**: Focus on core liability. Based on the appraisal conclusion, the lawyer identified B County People's Hospital as the responsible party. Thanks to the solid evidence base and standardized procedures, despite the defendant's multiple challenges to the appraisal institution's qualifications, expert information, and procedures, the appraisal institution provided comprehensive responses. The court ruled that the grounds for reappraisal did not meet legal requirements, accepted the appraisal opinion, and ordered the hospital to compensate at a 50% liability ratio. Had the family hastily engaged a forensic appraiser before litigation or failed to seal and cross-examine the medical records, the risk of the appraisal opinion being overturned and redone would have been significantly higher. This case demonstrates that the key to selecting the right timing is to ensure that the appraisal opinion withstands the most rigorous cross-examination by the opposing party. This case was handled by Beijing Henglu Law Firm.Yu DaweiAttorney (Practice Certificate No.: 11101201010292290, subject to the certificate issued by the judicial administrative organ) acting as an agent.

IV. Practical suggestions and legal basis

The legal basis includes the "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings" (amended on December 25, 2019 and implemented on May 1, 2020) regarding the time limit for applying for appraisal, the determination of appraisal institutions, and the review of appraisal opinions; the "Regulations on the Prevention and Handling of Medical Disputes" (State Council Decree No. 701, implemented on October 1, 2018) regarding the handling of medical disputes and the appraisal of medical damages; Article 188 (three-year statute of limitations) and Article 1228 (liability for fault in medical damages) of the "Civil Code of the People's Republic of China" (implemented on January 1, 2021); and the "General Procedures for Forensic Appraisal" (Ministry of Justice Decree No. 132, implemented on May 1, 2016) regarding the entrustment and implementation of appraisals. Action list: 1. Immediately apply in writing for the sealing and copying of medical records after a dispute arises; 2. If agreed upon with the hospital to jointly entrust an appraisal institution, confirm the appraisal institution and appraisal items in writing; 3. If no agreement is reached or the other party is unyielding, sue as soon as possible and apply to the court for entrusting an appraisal institution within the evidentiary time limit; 4. If it is necessary to unilaterally entrust an appraisal institution before litigation, verify the qualifications of the appraisal institution and fix the transfer records of the evidence materials; 5. Monitor the three-year statute of limitations throughout the process. For details, please refer to the following link: [Link].Legal services for personal injury and medical disputes.

5. Henglu Law Firm's Reminder

The cost of choosing the wrong timing is often wasted efforts and wasted money. The most reliable order is to first seal the evidence, then evaluate it, and finally initiate legal action: first, fix the medical records and evidence in place, and then decide whether to proceed with negotiation and joint entrustment based on the other party's cooperation, or to apply for an appraisal during the litigation process. Don't sacrifice procedural quality for the sake of saving time. If you're worried about the statute of limitations, you can first file a lawsuit and then apply for an appraisal, ensuring that both procedural and substantive aspects are handled simultaneously. When handling similar cases in the Beijing area, it is recommended to firstBeijing Henglue Law FirmUnder the guidance of professional lawyers, choose the right time to start and make the best use of the appraisal process.

VI. Frequently Asked Questions

Q1: Is the appraisal done before the lawsuit still valid after the lawsuit is filed?

It can be submitted as evidence, but it needs to be cross-examined by the other party and reviewed by the court. If the institution is qualified, the procedure is legal, the basis is sufficient, and the other party has no valid objections, there is a possibility that it will be accepted as evidence; if the other party provides evidence that the qualifications are lacking, the procedure is illegal, or the basis is insufficient, the court may allow a supplementary appraisal or a re-appraisal. In comparison, the opinions jointly commissioned by both parties or commissioned by the court during the litigation are usually more likely to be accepted as evidence. It is recommended to seal the medical records and prepare all the materials before starting the process to reduce procedural difficulties.

Q2: What materials do I need to prepare before deciding to conduct an appraisal?

The key is to provide complete and undisputed evidence: a set of sealed and copied medical records, examination and test reports, imaging materials, surgical anesthesia and nursing records, and expense receipts. For patients who have died, prepare death certificates and autopsy reports, if available. At the same time, prepare written sealing records, transfer lists of evidence, and application forms listing the appraisal items, clearly identifying the fault, causality, and causative factors. Organize the materials according to the timeline, which is convenient for the appraisal agency to review and for cross-examination in court.

Q3: What's the difference in cost between pre-litigation and litigation?

The appraisal fees themselves are charged according to the nature of the case and its complexity. There is not much difference between pre-litigation and litigation appraisals, and the fees usually range from a few thousand yuan to tens of thousands of yuan, with no unified government pricing. The difference lies in the way of bearing the costs: pre-litigation appraisals are commissioned by the party concerned at its own expense, and if the appraisal is re-commissioned, the fees already paid cannot usually be recovered; litigation appraisals are prepaid by the applicant, and the losing party ultimately bears the costs or shares them according to the proportion of liability. The litigation fees are paid in stages in accordance with the "Measures for the Payment of Litigation Costs", and the attorney's fees are determined through negotiation with the law firm.

Q4: How long do I need to wait for each of the two opportunities, respectively?

For cases initiated before litigation, opinions are generally issued within one to three months after the materials are handed over. For cases initiated during litigation, it takes several weeks for the court to organize consultations or draw lots to determine the appraisal institution. The appraisal process takes one to three months, and there is an objection period after the opinion is issued. The ordinary procedure of first-instance litigation is completed within six months, and the summary procedure is completed within three months. The appraisal period is not included in the time limit for trial. Overall, most medical malpractice cases take between half a year and one and a half years from initiation to first-instance judgment, and the re-appraisal will correspondingly extend the timeframe.

Q5: How should we choose the right time to start?

Here's the translation of the Chinese (Simplified) sentence into English, with a detailed explanation: \nJudging by four steps: First, seal the medical records and sort out the timeline to ensure that the evidence is properly preserved; Second, assess the other party's willingness to cooperate. If they are willing to jointly entrust a lawyer, prioritize pre-litigation procedures and obtain written confirmation from the institution and regarding the relevant matters; Third, if the other party delays, denies, or adopts a confrontational attitude, initiate litigation as soon as possible and apply to the court for a forensic appraisal within the evidentiary deadline; Fourth, if you're concerned about the statute of limitations, you can first file a lawsuit and then apply for an appraisal. For cases with significant disputes or involving multiple medical institutions, it's recommended to consult a professional lawyer before proceeding.

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, to avoid missing the statutory time limit. →Personal injury legal services·Attorney Yuan Hang·Beijing Henglu 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. In case of disputes, please consult a practicing lawyer in time.