[Direct answer]In the Beijing area, if hospitals refuse to mediate, patients can still protect their rights according to the law. Mediation is not the only or preliminary way to resolve medical disputes. According to Article 121 of the Civil Code of the People's Republic of China (effective January 1, 2021), if a patient suffers harm during the medical treatment process and the medical institution or its medical staff are at fault, the medical institution shall bear the liability for compensation. Patients can choose to file a complaint with the health administrative department, apply for mediation by the medical arbitration committee, or directly sue the people's court. The core prerequisite are to copy and seal the medical records as soon as possible, fix the evidence of the medical treatment process, and apply for a medical damage appraisal if necessary. It is recommended to first assess whether the evidence of fault and harm is sufficient, and then decide on the path to follow. For more details, please refer to the following link:Personal injury and medical dispute services.

I. Problem Background and Typical Scenarios

It's not uncommon for hospitals to refuse to mediate in practice. Typical scenarios include: after the patient raises a claim for compensation, the hospital delays by citing "following procedures" or "waiting for appraisal"; when the patient and the hospital have a huge gap in their understanding of the fault, the hospital is unwilling to sit down and discuss; and when the patient is emotional and has unrealistic demands, the hospital chooses to avoid the negotiation. Many patients mistakenly believe that if the hospital refuses to negotiate, there's "no hope". In fact, mediation is just an optional channel, and litigation and administrative complaints are also viable options. What really determines the success or failure of protecting rights is whether the evidence is solid and whether the fault can be proven, rather than whether the hospital is willing to cooperate in the negotiation. For cases involving disability assessment, it can be combined with other evidence to prove the causality between the medical act and the patient's injury.Labor arbitration and work-related injury compensation servicesMy experience in appraising antiques in China.

II. Key points of dispute

When the hospital refuses to mediate, the focus of the dispute shifts to "how to prove the causal relationship between medical negligence and the resulting damages". Firstly, the determination of fault: whether the medical treatment violates the clinical treatment norms, and whether the hospital fulfilled its obligation to provide explanations and exercise reasonable care. Secondly, the relationship between damages and causality: whether the patient's adverse outcomes are caused by medical actions, and the degree of involvement. Thirdly, evidence control: the medical records are kept by the hospital, and the patient needs to legally copy and seal them to prevent tampering. Fourthly, path selection: complaints, mediation, and litigation each have their advantages and disadvantages. Although litigation has coercive force, it takes longer. For cases involving evidence fixation, reference can be made to the relevant provisions of the Civil Procedure Law of the People's Republic of China.Business and contract dispute resolution services for enterprisesThe evidence-presentation approach in the Chinese legal system.

III. Professional analysis by Hengluo Law Firm

Based on practical observations in handling medical liability disputes, when the hospital refuses to mediate, the most important thing for patients to do is to "hold onto the evidence." In practice, it's common for patients to repeatedly negotiate with the hospital but fail to copy the medical records in time. By the time they prepare to sue, it's often difficult to reconstruct key nursing records and consultation opinions. When handling similar cases in the Beijing area, Hengluo Lawyers usually advise clients to first review and copy all medical records in accordance with the requirements of the "Regulations on the Prevention and Handling of Medical Disputes" and jointly seal them. Then, they commission professionals to analyze whether there were any negligence in the treatment process. Only after gathering sufficient evidence do they decide whether to sue, to avoid being put on the defensive due to insufficient evidence after hastily filing a lawsuit. For hospitals that clearly neglect to handle complaints, they will also simultaneously report the situation to the competent health authorities, creating multiple sources of pressure.

IV. Practical suggestions and legal basis

The legal basis is Article 121 of the Civil Code (effective January 1, 2021) (liability for medical damage), Article 122 (obligation of medical personnel to provide explanations), and Article 123 (presumption of fault); as well as the provisions of the Regulations on the Prevention and Handling of Medical Disputes (effective October 1, 2018) regarding the copying and sealing of medical records and the handling of complaints. Practical suggestions: immediately request to copy and seal the medical records after a dispute arises; organize patient cards, examination and inspection reports, imaging materials, and communication records; when necessary, apply for a medical damage appraisal to clarify fault and participation; if the hospital refuses to handle the matter, file a complaint with the competent health department; when the evidence is sufficient, directly sue to claim compensation. For calculating compensation, it can be combined with the following factors:Creditor-debtor relations and enforcement case servicesAdvance.

5. Henglu Law Firm's Reminder

The hospital's refusal to mediate does not mean that patients have no recourse. Here are three tips: First, don't spend all your energy on "negotiations". Instead, legally copy and seal the medical records first, which is the foundation of all subsequent procedures; Second, rationally evaluate the evidence of fault. Blindly suing may lead to failure due to insufficient evidence. You can first invite professionals to analyze the diagnosis and treatment process; Third, complaints, mediation, and litigation can proceed in parallel or sequentially, without being limited to one approach. If the hospital delays or evades responsibility, keep records of every communication. File complaints when necessary and initiate lawsuits when appropriate. For more strategies, please refer to the following link:Special services and other case services.

VI. Frequently Asked Questions

Q1: If the hospital refuses to mediate and the patient sues directly, will they lose out in the end?

Directly suing won't necessarily be disadvantageous. On the contrary, the court's compulsory evidence collection and professional appraisals may help clarify the facts. The advantages of mediation lie in its speed and low cost, while its disadvantages depend on the parties' willingness to cooperate. The advantages of litigation include the enforceability of judgments and the ability to request appraisals and investigations, while its disadvantages include longer timeframes and higher costs. Whether it's "unfavourable" depends on the evidence: if the medical records have been sealed and the evidence of negligence is clear, suing may actually help secure the compensation you deserve. It's advisable to first secure the evidence and then compare the cost-effectiveness of mediation and litigation, rather than backing down just because the hospital refuses to negotiate.

Q2: If the hospital refuses to mediate, what key evidence can the patient collect?

The core evidence includes: outpatient medical records, hospitalization notes, medical progress records, medical orders, surgical consent forms and conversation records (legally copied and sealed), examination and inspection reports and imaging data, medical expense receipts, and audio or written records of communication between the two parties. The focus is on proving the course of treatment and the consequences of the damage, and attempting to point out the hospital's violations of regulations or failure to fulfill its obligation to provide explanations. The medical records are kept by the hospital, and the patient has the right to copy them. Sealing them can prevent tampering. For suspected physical evidence such as drugs and medical devices, special attention should also be paid to their preservation. The more complete the evidence is, the more proactive the subsequent appraisal and litigation will be.

Q3: If we don't go through mediation and proceed directly to litigation, how much will the attorney's fees and litigation costs be?

The litigation fees shall be calculated according to the "Measures for the Payment of Litigation Costs", based on the amount of the litigation request and accumulated in stages. The losing party shall bear the fees or share them proportionally; in medical malpractice cases, the fees shall be calculated based on the total amount of compensation claimed. The attorney's fees shall be determined according to the complexity of the case, the necessity of appraisal, and the workload, either on a fixed-fee basis or a percentage of the total amount of the claim, subject to the terms of the retainer agreement. There is no uniform standard for this. Compared with mediation, litigation involves appraisal fees and longer-term costs, but in return, it offers a judgment that can be enforced. It is recommended that you consult a lawyer to assess the chances of winning and the amount of compensation that can be claimed before initiating litigation, and then start the process after weighing the costs and benefits.

Q4: How long does it usually take for medical dispute litigation to reach a conclusion?

The first-instance ordinary procedure is generally concluded within six months, and the time limit may be extended if the case is complex. Medical damage cases often take a long time due to appraisals, and the appraisal period is not included in the time limit, so the overall process may last for a year or even longer. If an appeal is filed, the second-instance procedure generally takes three months. After the judgment takes effect, the enforcement stage begins, and the recovery of funds depends on the hospital's performance. Compared with mediation, which takes weeks to months, the litigation cycle is obviously longer, but it is final and binding. It is recommended to claim compensation in one go after the treatment is completed and the disability is stabilized, so as to avoid repeated supplementation of evidence and delays due to the immaturity of the appraisal timing.

Q5: If the hospital refuses to mediate, what should the patient do as the first step?

It is recommended to proceed in four steps: Firstly, immediately request the hospital's medical records management department to copy all medical records and seal them together with the hospital to prevent the records from being tampered with; Secondly, organize all medical visit receipts, examination reports, and communication records to sort out the timeline of the treatment process; Thirdly, consult a professional lawyer with the materials or apply for a medical damage analysis to determine whether the hospital is at fault and the scope of claims that can be made; Fourthly, file complaints with the competent health authorities, apply for mediation by the Medical Dispute Mediation Committee, or directly file a lawsuit as appropriate. The key is to first secure the evidence before taking action, and not to confront the hospital rashly without a backup of the medical records.

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 Hengluo Lawyers for specific cases.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence to avoid missing the statutory time limit. →Personal injury legal services·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. If you encounter disputes, please consult a practicing lawyer in time.