[Direct answer]The two have different natures and uses: medical accident technical appraisals are organized by medical societies in accordance with the "Regulations on the Handling of Medical Accidents" (implemented on September 1, 2002), primarily for health administrative departments to determine whether a case constitutes a medical accident and to conduct administrative handling; medical damage appraisals are conducted by judicial appraisal institutions in accordance with the provisions of the seventh chapter of the "Civil Code of the People's Republic of China" on medical damage liability, used in civil litigation to determine the doctor's fault, causality, and degree of involvement. In civil compensation lawsuits, courts generally commission medical damage appraisals, and compensation is not conditional on "constituting a medical accident". Patients should first copy and seal the medical records (Article 1226 of the Civil Code) and assert their rights within the three-year statute of limitations. Beijing Henglu Law FirmPersonal Injury and Medical Dispute TeamIt can assist in selecting the appraisal path. For more details, please refer to the following link:Beijing Henglu Law Firm.

I. Legal basis and interpretation of provisions

1. Articles 20 and 21 of the Regulations on the Handling of Medical Accidents (effective from September 1, 2002)

After the health administrative department receives a report of a major medical negligence incident from a medical institution or an application for handling a medical accident dispute from a party concerned, it shall refer the cases requiring appraisal to the medical society responsible for technical appraisal of medical accidents; the first appraisal shall be conducted by the medical society at the municipal level in cities directly under the jurisdiction of provinces, autonomous regions, or municipalities, and the parties dissatisfied with the conclusion may apply for a second appraisal within the prescribed time limit. This system classifies medical accidents according to the degree of damage, primarily serving to determine administrative responsibility and handle administrative measures against medical institutions and medical personnel; after the implementation of the Civil Code, civil compensation has mainly shifted to the track of medical damage appraisal, and accident appraisal is no longer a mandatory procedure for civil claims.

2. Article 121 of the Civil Code of the People's Republic of China (effective as of January 1, 2021)

If a patient is harmed 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. The constitutive elements of civil compensation are fault, damage, and causality, all of which must be present. However, the proof of these three elements relies heavily on professional appraisal — courts usually do not have the ability to independently determine whether the medical treatment meets the standards, and they typically commission judicial appraisal institutions to conduct medical damage appraisals upon the request of the parties or on their own initiative, providing opinions on fault, causality, and the degree of causation. This means that choosing the right type of appraisal and preparing a good statement for the appraisal hearing often have a greater impact on the compensation outcome than obsessing over the name of the appraisal itself.

3. Practical adjudication guidelines

In civil cases, courts generally use medical damage appraisal opinions as the core basis for determining fault and participation. The conclusions of medical accident technical appraisals can be used as a reference, but cannot directly replace them. The appraisal opinions must undergo cross-examination in court. If the parties have objections, they can request the appraisers to appear in court for questioning. The standard applied by the court is: the authenticity of the medical records is a prerequisite for initiating the appraisal. For those who forge, tamper with, or conceal medical records, the court may directly presume that the medical party is at fault according to Article 1212 of the Civil Code. Regarding liability for compensation, it does not matter whether it constitutes an "accident". As long as the fault and causality are established, the compensation will be awarded according to the proportion of causality.

II. Practical Experience of Henglue Law Firm

Based on Henglue's practical observations in handling medical dispute cases, the most common first mistake is "choosing the wrong path" in two types of appraisals. Some people only conduct the Medical Accident Technical Appraisal by the Medical Association, and after receiving the conclusion that "it does not constitute a medical accident", they mistakenly believe that they cannot claim compensation. In fact, there is still room for civil compensation through medical damage appraisal. Others rashly initiate appraisals before the medical records are copied and sealed, which leads to doubtful appraisal basis due to the medical side's subsequent supplementation of materials. Common disputes also include: the Medical Association and judicial appraisal institutions reaching different conclusions on the same medical records; the patient's statement lacking organization at the appraisal hearing, resulting in their participation being underestimated; and the medical side defending with "complications" and "medical accidents".

The general tendency of judges is to prioritize the review of the authenticity and completeness of medical records. Appraisal opinions that are legal and well-reasoned will generally be accepted. The degree of participation will be based on the appraisal opinions and appropriately adjusted in light of the evidence of the entire case. The most common pitfalls that litigants fall into include: not copying and sealing the medical records in a timely manner; focusing only on whether an accident occurred while neglecting to prove the fault and causality; being dissatisfied with the appraisal opinions but refusing to cross-examine the experts and not applying for a re-appraisal; and focusing on repeated negotiations rather than litigation procedures. Before initiating an appraisal, it is recommended to first consult a professional lawyer to evaluate the strength of the evidence and the key points of fault. For reference, you can refer to the following materials:Legal services for personal injury and medical disputesUnderstand the approach to handling similar disputes.

III. Frequently Asked Questions

Q1: Is it necessary to conduct a technical appraisal of the medical accident before suing the hospital?

No. The conventional path for civil claims is to apply for a medical damage appraisal, where the court entrusts a judicial appraisal institution to issue an opinion on the medical party's fault, causality, and involvement; whether it constitutes a "medical accident" only affects administrative handling and does not determine civil compensation. If a technical appraisal of the accident has already been conducted, it is also possible to apply for a medical damage appraisal separately, and the two are not mutually exclusive. Patients can directly file a lawsuit and apply for an appraisal in the litigation process, without having to go through the health administrative procedures first, and they will not be barred from compensation by the conclusion that "it does not constitute a medical accident".

Q2: What should I do if the hospital is withholding my medical records and refuses to give them to me?

Patients have the right to access and copy medical records, and medical institutions shall provide them in a timely manner, which is a clear requirement of Article 1226 of the Civil Code. After a dispute arises, the patient should apply for the sealing of the medical records as soon as possible, and the medical and patient parties shall be present to seal and sign the records together. If the medical party conceals, refuses to provide, or loses, falsifies, or alters the medical records, or illegally destroys them, it shall be directly presumed that they are at fault according to Article 1220 of the Civil Code, and the patient can claim compensation without the need for appraisal at that time. The copying and sealing of the records are the basis for all subsequent procedures, so it is necessary to keep the relevant documents well.

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

The cost of medical damage appraisal is charged according to the standards of the appraisal institutions, with fees ranging from a few thousand yuan to tens of thousands of yuan in different regions, depending on the specific appraisal items, the amount of medical records, and whether the appraiser appears in court. The fees are generally prepaid by the applicant, and the court will ultimately determine the burden according to the responsibility ratio or the outcome of the case. If the medical party is presumed to be at fault for forging or altering the medical records and therefore does not need an appraisal, this expense can be omitted. Patients with limited budgets can first evaluate and consult with lawyers about the feasibility of mediation or settlement, but under no circumstances should they give up copying and sealing the medical records due to the cost.

Q4: If the two appraisal conclusions are different, which one should I believe?

Civil litigation primarily relies on court-commissioned medical damage appraisals, which directly address the two compensation issues of "whether the medical party is at fault and the degree of causality between the fault and the damage"; medical accident technical appraisals address the qualitative issues at the administrative level. When the conclusions are inconsistent, the court will organize cross-examination around whether the appraisal procedures are legal, the qualifications of the appraisers, and whether the reasoning is sufficient. Typically, the court will give credence to the medical damage appraisals that directly correspond to the compensation elements. The parties may also request the appraisers to appear in court to explain, and, if necessary, request supplementary or re-appraisals.

Q5: If the appraisal concludes that the medical party only bears minor liability, can they still be compensated?

Yes. Minor liability means that the medical party is still required to bear corresponding compensation according to its degree of involvement, but at a lower proportion. If the patient party believes that the appraisal opinion is obviously unreasonable, it can point out the defects of the appraisal basis in the cross-examination and apply for supplementary appraisal or reappraisal. The amount of compensation is calculated by multiplying the total loss by the liability proportion. Even if there is only minor liability, if the loss base is large, the actual amount can still be considerable. It is not advisable to give it up easily. It is better to calculate the total loss first and then decide whether to accept it.

IV. Suggestions for Protecting Rights

  • After the dispute arose, we immediately copied all the medical records and applied for their sealing. Both the medical staff and the patients signed the documents together, thus preventing any disputes over "retroactive record-keeping".
  • Don't be misled by the phrase "does not constitute a medical accident". Civil claims go through medical damage appraisal, with fault and causality being the core issues.
  • Before the appraisal hearing, systematically organize the timeline of medical visits and the consequences of the damage, and, if necessary, be accompanied by a professional lawyer to present your opinions.
  • If you have any objections to the appraisal conclusion, you should promptly cross-examine the appraiser, request the appraiser to appear in court, or apply for a re-appraisal. Don't delay it.
  • Seize the three-year statute of limitations, which starts from the date when you know or should have known about the damage. For more ideas, please refer to the following linkBeijing Henglue Law FirmOfficial website.

If you are 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