[Direct answer]In the Beijing area, if a hospital claims that medical records have been lost, patients can still seek legal redress. The key point is to place the responsibility for preserving medical records on medical institutions. According to Article 24 of the "Regulations on the Prevention and Handling of Medical Disputes" (effective from October 1, 2018), medical institutions have the obligation to preserve and seal medical records. If the medical records are lost or cannot be provided, it is presumed that there is negligence in their preservation; Article 1222 of the "Civil Code of the People's Republic of China" (effective from January 1, 2021) stipulates that if a medical institution loses, forges, conceals, or refuses to provide medical records, it is presumed to be at fault. If a patient dies and there is a dispute over the cause of death, an autopsy should be conducted within 48 hours after the death. If the body can be preserved by freezing, the time limit can be extended to 7 days. Action guidance: Immediately request in writing to seal the remaining medical records, copy the objective medical records, and fix the communication records. As soon as possible, entrust a professional lawyer to clarify the path of fault and compensation.

I. Problem background and typical scenarios

Medical records are the most crucial evidence in medical disputes, but in practice, patients often encounter situations such as "lost medical records," "lost records due to system upgrades," and "damaged records due to water immersion." Typical scenarios include: after a patient's death, the family requests to seal the medical records, but the hospital informs them that some nursing records are missing; after emergency rescue and hospital transfer, the initial medical records are not archived; paper medical records are damp and moldy, and electronic medical records cannot be retrieved due to system migration; medical institutions cannot provide early records on the grounds of "expired storage period." These situations make patients, who are already at a disadvantage in terms of information, even more anxious, fearing that without medical records, they will not be able to protect their rights. For more information, please refer to the relevant rules.Legal services for personal injury and medical disputesYou can also do it onBeijing Henglu Law FirmYou can learn about similar cases on the official website.

II. Key points of contention

The controversy focuses on three points. First, the responsibility for the loss of medical records: The hospital claimed that the records were lost due to "objective reasons", while the patient claimed that the hospital failed to fulfill its obligation to preserve the records. The division of responsibility depends on whether the hospital fulfilled its statutory duties of sealing and preserving the records. Second, the application scope of the rules of evidence: Medical damages generally apply to fault liability, and only in the statutory circumstances where the hospital loses, conceals, or refuses to provide medical records will the court presume fault. For ordinary medical errors, the patient still needs to provide preliminary evidence. Third, the probative force of alternative evidence: When medical records are missing, emergency records, payment receipts, surveillance footage, and witness statements may be used to supplement the facts of medical treatment, but the courts have different interpretations of their probative value. In the judicial practice of Beijing, the hospital has a higher obligation to preserve medical records, and any defects in the medical records are easily subject to unfavorable presumptions. Therefore, patients should seize this point as a key piece of evidence in litigation.

III. Professional analysis by Henglue Law Firm

A medical malpractice liability dispute handled by Attorney Yu Dawei vividly demonstrates the decisive role of medical records and forensic appraisals in medical rights protection. On May 16, 2024, Zhao Dashan, an elderly patient with esophageal cancer, underwent a gastroscopic biopsy at A City Tumor Hospital after a follow-up examination. That same day, he suddenly vomited blood and was rushed to B County People's Hospital for emergency treatment. He was later transferred to the First Affiliated Hospital of C Medical University, but died on May 18 due to hemorrhagic shock and gastrointestinal bleeding. His wife, Liu Shufen, and three children entrusted Attorney Yu Dawei to sue the three hospitals for medical negligence causing the death. The attorney adopted a three-step strategy: comprehensively obtaining the medical records, emergency records, and payment receipts from the three hospitals to construct a timeline; accurately applying for a forensic appraisal of "medical negligence and causality"; and identifying B County People's Hospital based on the appraisal results. The appraisal concluded that B County People's Hospital's negligence was causally related to the "loss of survival opportunities" with a 50% contributory negligence. The court accepted the appraisal opinion and ordered the hospital to compensate according to a 50% liability ratio. The outcome of this case is inseparable from the timely preservation of medical records and evidence. If the medical records were lost, alternative evidence chains and forensic appraisals would have become crucial. This case was handled by Beijing Henglu Law Firm.Yu DawaiAttorney (practice certificate number: 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 Article 16 (Medical Record Writing and Storage), Article 23 (Medical Record Copying), and Article 24 (Medical Record Sealing) of the "Regulations on the Prevention and Handling of Medical Disputes" (effective October 1, 2018); Article 1,218 (Liability for Medical Damage Due to Negligence), Article 1,220 (Presumption of Medical Negligence), and Article 1,223 (Liability for Defects in Drugs and Medical Devices) of the "Civil Code of the People's Republic of China" (effective January 1, 2021); and Article 18 (Autopsy Time Limit) of the "Regulations on the Handling of Medical Accidents" (effective September 1, 2002). Action List: 1. Request the sealing and copying of objective medical records on the same day as the treatment dispute arises; 2. Document in writing any records admitted by the medical side as missing; 3. Collect circumstantial evidence such as payment receipts, nursing records, and surveillance footage; 4. Apply for a judicial appraisal of medical damage in a timely manner; 5. Apply for pre-litigation evidence preservation when necessary. For more details, please refer to the attached document.Legal services for personal injury and medical disputes.

5. Henglu Law Firm's Reminder

The greatest risk of losing medical records is "evidence disappearing over time": surveillance footage has a coverage period, witnesses' memories may fade, and electronic records may be overwritten. It's more beneficial to fix the problem as soon as possible. At the same time, be vigilant against the hospital altering records after the fact under the guise of "supplementary recording". Before sealing the medical records, check the time they were created. The loss of medical records doesn't mean the possibility of compensation is lost, but the burden of proof will increase, so it's necessary to prepare solid alternative evidence. When handling similar cases in the Beijing area, it's recommended to do the following:Beijing Henglu Law FirmWith the assistance of professional lawyers, the custody responsibilities and appraisal procedures are planned together.

VI. Frequently Asked Questions

Q1: Can I still file a lawsuit for medical disputes if I've lost my medical records?

Yes. The loss of medical records does not necessarily result in a loss of the lawsuit. According to Article 24 of the "Regulations on the Prevention and Handling of Medical Disputes", medical institutions have the obligation to keep medical records. If the medical records are lost or cannot be provided, it is presumed that there is a fault in their custody; Article 1222 of the "Civil Code" further stipulates that if a medical institution loses, forges, conceals, or refuses to provide medical records, it is presumed that there is a fault. The patient can use emergency records, payment receipts, nursing records, surveillance footage, and witness statements to corroborate the medical treatment process, and combine with the medical damage judicial appraisal to claim compensation. The outcome of the case depends on evidence and appraisal. No lawyer can guarantee victory on their own.

Q2: What other evidence should patients prepare if their medical records are lost?

Even if the medical records are missing, various types of evidence can still be collected: emergency and outpatient registration records, payment receipts, examination and inspection reports, pharmacy pick-up records, nursing records and vital signs monitoring forms; communication recordings with medical staff and WeChat records; testimonies from fellow patients or family members in the same ward; on-site surveillance footage; ambulance and transfer records; death certificates and autopsy reports (if available). The key is to form an evidence chain that reflects the timeline of diagnosis and treatment and the changes in the patient's condition. If necessary, apply to the court to retrieve other records kept by medical institutions or order the medical party to provide an explanation.

Q3: How much does it cost to hire a lawyer if the medical records are lost?

The attorney's fees are determined through negotiation between the law firm and the client, and there is no unified government pricing. Medical disputes are often charged on a per-case basis or as a percentage of the compensation requested. The case acceptance fee is calculated according to the "Procedures for the Payment of Litigation Costs" (implemented on April 1, 2007), with the amount of the claim as the base for tiered accumulation. Mediation or withdrawal of the lawsuit results in a 50% reduction in fees. For cases involving judicial appraisals of medical damages, the appraisal fees are calculated separately and are usually prepaid by the applicant. Before entrusting the lawyer, it is recommended to confirm the charging method, service stages, and refund rules, and to calculate the litigation costs together with the expected compensation.

Q4: How long does it usually take to protect one's rights if the medical records are lost?

The duration of the process depends on whether a forensic appraisal and trial procedures are required: medical liability disputes usually require first applying for a forensic appraisal of medical negligence and causality, which often takes several months to schedule; first-instance ordinary procedures are concluded within six months and summary procedures within three months, and the appraisal period is generally not included in the trial time limit. Cases involving lost medical records often take more than half a year to a year to resolve due to the need for supplementary retrieval and cross-examination. If the patient dies and there are disputes over the cause of death, an autopsy must be completed within 48 hours after death, and the storage of the body can be extended to seven days. Failure to do so will affect the determination of the cause of death.

Q5: If you find that your medical records are missing, what should you do first?

Four steps to proceed: First, immediately request the medical institution in writing to seal up and copy the objective medical records (temperature charts, medical orders, test reports, etc.) that are still retained, and keep the communication records; Second, file a complaint with the medical department or the medical-patient office to fix the evidence of the medical side's own admission of missing medical records; Third, collect circumstantial evidence such as payment, registration, nursing, and surveillance to complete the timeline of the diagnosis and treatment; Fourth, as soon as possible, entrust a professional lawyer to evaluate the fault and burden of proof, and decide whether to apply for an appraisal or file a lawsuit. Do not delay, to avoid the surveillance being covered up and witnesses forgetting what happened.

The above content is based on the judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm for specific cases.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant 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 publicly available 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 a timely manner.