[Direct answer]There are clear legal grounds for both traffic accident nursing fees and nutrition fees: Article 1179 of the Civil Code of the People's Republic of China lists them as statutory compensation items; nursing fees are determined based on the income status of the caregivers, the number of caregivers, and the duration of care. In principle, there should be one caregiver, and the duration of care is generally calculated until the victim regains the ability to live independently. For those who cannot regain self-care due to disabilities, the duration of care is determined by appraisal, with a maximum of 20 years. Nutrition fees are determined based on the victim's disability and in accordance with the opinions of medical institutions. The key evidence for claiming these fees includes medical orders stating "special care is needed" and "strengthened nutrition", as well as appraisal opinions on disability and nursing dependency. If no agreement can be reached, the claimant should file a lawsuit within the statute of limitations. Beijing Henglu Law FirmPersonal injury｜Medical disputesThe team can assist in evaluating the compensation list. For more details, please refer to the following link:Beijing Henglu Law Firm.

I. Legal basis and interpretation of provisions

1. Article 1179 of the Civil Code of the People's Republic of China (effective on January 1, 2021)

The provision stipulates that if a person infringes on others' rights and causes personal injury, they shall compensate for reasonable expenses incurred for treatment and rehabilitation, including medical expenses, nursing fees, transportation fees, nutrition fees, and hospitalization subsistence allowances, as well as income lost due to work absence. If the victim suffers from a disability, they shall also compensate for the cost of assistive devices and disability compensation. The legislative purpose is to enable victims to return to the living state before the damage occurred. Nursing fees correspond to "rehabilitation care", and nutrition fees correspond to "physical recovery", which are actual expenses. The prerequisite for application are that the damage and the accident have a causal relationship, so the traffic police's liability determination letter and complete medical records are basic evidence. A common dispute is that the other party claims that the expenses are unrelated to the accident. When providing evidence, it is necessary to use medical orders and appraisal opinions to correspond each compensation item with the accident one by one.

2. Article 8 and Article 11 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Personal Injury Compensation Cases" (effective from May 1, 2022)

Article 8 stipulates that nursing fees shall be determined based on the income status of the nursing staff, the number of people being cared for, and the duration of the nursing period: if the nursing staff have an income, the fees shall be calculated based on the actual reduction in their income; if they have no income or hire nursing staff, the fees shall be determined by referring to the labor remuneration standards for nursing staff engaged in the same level of care in the local area; the duration of the nursing period shall be calculated until the victim regains the ability to care for themselves. If the disability cannot be recovered, a reasonable period shall be determined based on factors such as age and health status, but the maximum period shall not exceed 20 years. Article 11 stipulates that nutritional fees shall be determined based on the victim's disability situation and the opinions of medical institutions. The two articles together constitute a calculation coordinate system: first determine "people, period, price", and then determine "whether there is any, and how much to compensate".

3. Practical adjudication guidelines

The court's actual interpretation is as follows: The number of caregivers shall be determined on a per-person basis in principle, unless there are clear opinions in medical orders or appraisals; the nursing fees during hospitalization shall be determined based on the caregiving agreement and receipts, and after discharge, the nursing fees must be based on medical orders or appraisals of care dependency levels. Otherwise, the claims will generally be rejected due to insufficient evidence; for nutrition fees, medical orders or appraisals requiring "enhanced nutrition" are commonly required, and the fees are generally determined based on local standards at dozens of yuan per day. At the insurance level, nursing fees are included in the compensation limit for death and disability of compulsory insurance (the current limit is 180,000 yuan), and nutrition fees are included in the compensation limit for medical expenses (the current limit is 18,000 yuan). The excess shall be borne by commercial insurance or the infringer according to the liability ratio.

II. Practical Experience of Henglue Law Firm

The common disputes focus on three aspects: First, the length of the post-discharge care period. Insurance companies often only recognize the period during hospitalization, while courts determine the post-discharge care period based on medical orders and assessments of care dependency. Second, the number and standard of caregivers. Those who claim to need more than two caregivers or to calculate the cost based on high-priced caregiver standards need to provide medical orders, caregiver agreements, and receipts to support their claims. Third, the lack of medical orders for nutrition fees. In practice, such claims are most likely to be rejected. Therefore, patients should actively request doctors to clearly record the nutrition fees in their medical records during hospitalization.

The judges' preferences are obvious: they place great emphasis on appraisals, medical prescriptions, and documentary evidence, and pay less attention to oral statements. In cases of serious injuries that may lead to disability, the courts generally expect the parties to submit appraisals of the disability level and care dependency, rather than making their own estimates. For family members with fixed incomes who provide care, the court generally determines their loss of income based on the actual situation, and the care costs claimed by the family members cannot be claimed concurrently with the victim's own loss of income.

The most common pitfalls that parties are prone to fall into include: first, the medical records fail to record the accompanying care and nutritional needs, making it impossible to supplement the evidence afterwards; second, the long-term care fees are overlooked during the settlement process, making it difficult to claim compensation after signing the agreement; third, delaying the appraisal and litigation. According to Article 188 of the Civil Code of the People's Republic of China (effective from January 1, 2021), the statute of limitations for litigation is three years, and the right to win the case will be lost if it exceeds the time limit. It is recommended to appraise the injury as soon as possible after the condition stabilizes, list the full compensation list, and then negotiate. The handling approach of similar disputes can be referred to for reference.Personal injury legal servicesThe page.

III. Frequently Asked Questions

Q1: If I still need someone to take care of me after discharge from the hospital, can I still claim nursing care fees?

Yes. The nursing period is calculated according to law until the patient regains the ability to take care of themselves. Discharge from the hospital does not mean that the nursing fee ends. The key lies in the evidence: if the discharge instructions specify that continued nursing care is needed after discharge, or if the nursing dependency level is determined through appraisal, the court will support the nursing fee for a reasonable period after discharge; if the patient develops a disability and requires long-term care, the nursing fee can be claimed for up to 20 years according to the appraisal. It is recommended to ask the doctor to document the nursing needs in writing when discharged, to avoid difficulties in obtaining supporting evidence later on.

Q2: If a family member takes leave to provide care, how are the expenses calculated?

Family care can also be claimed. For those with fixed incomes, the compensation shall be calculated based on the actual reduction in their income, and the unit shall provide a certificate of salary deduction and a salary statement; for those without fixed incomes or who have retired, the compensation shall be referenced to the labor remuneration standards for caregivers of the same grade in the local area. Note two points: the number of caregivers shall be calculated on a per-person basis in principle, and multiple caregivers shall be specifically stated in the medical prescription; family care fees and the victim's own loss of working time compensation are two separate items, and the same care cannot be claimed twice for the same expenses.

Q3: How much is the daily nutrition fee approximately?

There is no nationwide standard for daily nutritional expenses. Courts generally refer to local judicial practices and set the amount at around tens of yuan per day, taking into account the degree of disability and medical advice to determine the number of days. In practice in the Beijing area, it is common to set the amount at between 30 yuan and 100 yuan per day, with a slight increase for serious injuries and the recovery period after surgery. The prerequisite are that the medical records contain instructions for "enhanced nutrition" or appraisal opinions supporting this; without medical instructions, it is generally not supported to rely solely on receipts for purchasing health supplements. Keeping formal receipts for purchasing nutritional products can help determine the appropriate amount.

Q4: What if the insurance company only compensates for the nursing fees during the hospitalization period?

It's a common price-cutting tactic for insurance companies to only recognize the number of hospitalization days according to their internal standards. Countermeasures: Use medical prescriptions, disability appraisals, and nursing dependency appraisals to refute this. If nursing care is indeed needed after discharge, submit proof of nursing needs and actual expenditure receipts; if no agreement can be reached, the insurance company can be listed as a co-defendant in the lawsuit, and the court will determine the nursing period according to the law. Nursing fees are covered by the 180,000 yuan limit of the compulsory insurance for death and disability compensation, and there is sufficient compensation space within this period, so there's no need to easily accept obviously low-price proposals.

Q5: What evidence do I need to prepare if the negotiation fails and I decide to sue?

Prepare at least five sets of documents: the traffic accident liability determination letter, which specifies the liability ratio; medical records and discharge records, which detail the injury, accompanying care, and nutritional instructions; nursing certificates, including nursing care agreements, receipts, or family members' loss of income certificates; opinions on disability levels and nursing dependency, which determine long-term care fees; and receipts for purchasing nutritional products. According to Article 188 of the Civil Code of the People's Republic of China (effective January 1, 2021), the statute of limitations for litigation is three years, starting from the date when the plaintiff becomes aware of the infringement of their rights. For more similar issues, please refer to the relevant provisions.Specialised legal services\nPage.

IV. Suggestions for Protecting Rights

  • During the hospitalization, please ask the doctor to state in the medical record that "special care is needed" and "nutrition should be strengthened", and keep all medical orders and receipts.
  • After the injury condition stabilizes, conduct a disability assessment and a nursing dependency assessment in a timely manner. The nursing fees and long-term care fees after discharge shall be based on the assessment results.
  • Before reaching a settlement, check each item on the compensation list carefully to avoid missing out on post-discharge nursing care fees and nutrition fees, which will be harder to claim later on.
  • When negotiating with insurance companies, we will base our arguments on their coverage limits and appraisal opinions. If the insurance company significantly lowers the offer, we will consider taking legal action against them.
  • Please note the three-year statute of limitations. During the negotiation period, you can also initiate a lawsuit to interrupt the statute of limitations. For more details, please refer to the following link:Beijing Henglu Law Firm.

If you are currently 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·Beijing Henglu Law Firm