[Direct answer]Medical disputes are not a multiple-choice question of "just conducting an appraisal" or "filing a lawsuit first". The standard procedure is: first, seal and copy the medical records to fix the evidence, then choose voluntary consultation, people's mediation, administrative mediation, or litigation in the court according to Article 22 of the "Regulations on the Prevention and Handling of Medical Disputes"; medical damage appraisals are usually commissioned by the court during litigation, focusing on fault, causality, and causation. If the appraisal commissioned by one party before litigation is not recognized by the other party, repeated appraisals will often be carried out, which will only increase costs. What really needs to be prevented is delay - the loss of medical records, unclear cause of death, and the three-year statute of limitations for litigation. It is recommended to first seal the medical records and conduct an evaluation, which can be referred to for reference.Personal injury legal servicesOrBeijing Henglu Law Firm.

I. Legal basis and interpretation of provisions

1. Article 22 of the "Regulations on the Prevention and Handling of Medical Disputes" (effective from October 1, 2018)

When a medical dispute arises, both the patient and the medical staff can resolve it through the following channels: voluntary negotiation; applying for people's mediation; applying for administrative mediation; filing a lawsuit with the people's court; and other channels prescribed by laws and regulations. The regulations also grant patients important procedural rights: the right to copy all medical records and request their seal-up, with the seal-up list signed by both the patient and the medical staff; if there are objections to the cause of death, an autopsy shall be conducted within 48 hours after the patient's death, and if the body meets the conditions for freezing, the time limit may be extended to seven days. These rights directly determine the quality of subsequent evidence - medical records and the cause of death are the two cornerstones of medical damage identification. By fixing them first, any path of negotiation, mediation, or litigation can proceed smoothly.

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

If a patient is harmed during the diagnosis and treatment process and the medical institution or its medical staff are at fault, the medical institution shall bear the liability for compensation. Medical harm applies to fault liability, and the patient needs to provide evidence of the diagnosis and treatment actions, the harm consequences, the causal relationship, and the fault. This is precisely the issue that medical harm appraisal aims to resolve. At the same time, please note Article 1224: If the medical institution conceals or refuses to provide the medical records, loses, falsifies, or illegally destroys the medical records, it shall be directly presumed to be at fault—this is the most powerful weapon for the patient and the reason why it is necessary to seal the medical records immediately. The compensation items shall be calculated according to the general rules for personal injury, and there are additional disability compensation and death compensation for cases involving disability or death.

3. Practical adjudication guidelines (the connection between appraisal and litigation)

When courts handle disputes over medical malpractice liability, the vast majority of cases rely on the medical malpractice appraisal opinions commissioned by the court as the basis for judgment. The appraisal focuses on fault, causality, and the degree of causation (participation). For appraisals commissioned unilaterally by the plaintiff before litigation, medical institutions often file procedural objections to request a reappraisal, which results in double the cost and time spent. The mainstream practice is to first file a case, then have the court organize the selection of an appraisal institution, with the appraisal period typically ranging from three to six months. The Medical Mediation Committee does not charge fees and has a short process, making it suitable for cases with manageable disputes. For cases with significant disputes over the cause of death, evasive responses from the hospital, or large compensation differences, it is more efficient to directly file a lawsuit to seize control of the litigation process. Moreover, mediation can still be conducted at any time during the litigation process. The two approaches are not mutually exclusive.

II. Henglue Lawyer's Practical Experience

Henglue's intuitive experience in medical disputes is that the most common mistake made by patients' families is not choosing the wrong procedure, but delaying action—such as not sealing the medical records, not making complete copies, and waiting until they decide to sue only to find that the medical records have been "retroactively recorded" or even unavailable in their entirety, leaving them completely passive in the appraisal and liability determination process. The standard procedure is to request the sealing and copying of all medical records immediately, including outpatient and emergency medical records, hospitalization notes, surgical records, anesthesia records, nursing records, laboratory reports, and imaging materials. After both parties sign the sealing list, each party shall keep it for safekeeping.

The criteria for path selection are generally as follows: if the damage consequences are clear, the amount of the dispute is not large, and both parties are willing to negotiate, they can go through the mediation of the Medical Dispute Mediation Committee, which is free and fast; if there are major disputes over the treatment process and the cause of death is unclear, first assess whether an autopsy is necessary, and then decide to sue and apply to the court for a commissioned appraisal; if the hospital delays the process with internal procedures and only talks about compensation without discussing liability, it is more efficient to sue directly. It is important to remember the 48-hour autopsy deadline for patient death cases (the storage conditions can be extended to seven days), and missing it will lead to the inability to determine the cause of death and difficulty in advancing the appraisal.

Prosecution and appraisal are not contradictory: the correct approach is to prosecute and apply for a medical damage appraisal at the same time. The court will entrust an agency to issue an opinion on the fault and causality. After the opinion is issued, the court will organize cross-examination and mediation. In most cases, mediation or judgment basis will be reached at this stage. Relevant services can be referred to for referencePersonal injury legal services\nPage.

III. Frequently Asked Questions

Q1: Can I directly sue the hospital without conducting an appraisal first?

Yes. Prosecution does not require a pre-litigation appraisal. Cases can be filed based on medical records, diagnosis certificates, and damage consequences. The fault and causality can be resolved through court-commissioned appraisals during the litigation process. The advantage of pre-litigation self-appraisals is that it helps predict compensation expectations and facilitates negotiations. However, the disadvantage is that the cost is borne by the party themselves, and medical institutions often file procedural objections to request re-appraisals, leading to duplicate expenses. Whether to conduct an appraisal first should be evaluated comprehensively based on the complexity of the case, the focus of the dispute, and the budget. For death and difficult cases, it is recommended to first assess the direction of the appraisal with a lawyer before proceeding, to avoid selecting an inappropriate appraisal item.

Q2: The medical records haven't been sealed yet. Is it still possible to protect my rights now?

Act as soon as possible. According to Article 1222 of the Civil Code, if a medical institution conceals, refuses to provide, loses, forges, alters, or illegally destroys medical records, it is directly presumed to be at fault, which is a powerful weapon for patients. Medical records are generally kept by hospitals, so it is more advantageous to seal and copy them as soon as possible. The statute of limitations is three years, starting from the date when the patient knows or should have known that his rights have been infringed and the obligee's identity has been determined. Most disputes have not exceeded the statute of limitations. If there are doubts about the authenticity of the medical records, the patient can also apply for a review of the documents to verify the time of their formation. Do not sign a settlement agreement according to the hospital's version out of fear of "being too late". It is better to seal the records first and then make a decision.

Q3: How much does a medical malpractice appraisal cost, and how long does it take?

The appraisal fee is charged according to the consequences of the damage, and the standards vary from region to region and among different institutions. It usually ranges from thousands of yuan to tens of thousands of yuan, and is typically paid in advance by the applicant. The fee is ultimately shared according to the proportion of liability or the outcome of mediation. The period for court-commissioned appraisals is generally three to six months, and more time is needed for difficult cases, which require expert hearings and multiple supplementary materials. After the appraisal opinion is issued, it must undergo cross-examination. If the appraiser refuses to testify in court, the appraisal opinion cannot be used as the basis for determining the facts; if there are objections to the opinion, the applicant may request the appraiser to appear in court or invite expert assistants to participate in the cross-examination.

Q4: If the negotiation with the hospital breaks down, should I opt for people's mediation or go to court?

The medical mediation committee offers free mediation with a short timeframe and a relaxed atmosphere, which is suitable for cases with clear damage consequences, controllable dispute amounts, and both parties' willingness to settle. The mediation agreement, once legally confirmed, has enforceable force. However, the mediation amount is usually conservative, and it's difficult for the hospital to make concessions without appraisal support. For cases with large compensation disputes, involving death, or where the hospital shirks responsibility, direct litigation can secure the procedural dominance. The appraisal opinion in litigation can be used as a bargaining chip, and mediation can still be conducted at any time. The two paths are not mutually exclusive. It's advisable to mediate first and immediately switch to litigation if no agreement is reached within the time limit, to avoid missing the opportunity by "procrastinating through talks".

Q5: If a patient passes away, what should the family do first?

Three things: First, immediately request to seal and copy all medical records, including resuscitation records and medical orders; Second, if there are objections to the cause of death, an autopsy shall be conducted within 48 hours after death (which can be extended to seven days if there are conditions for freezing and preservation), and the autopsy expenses shall be paid in advance and subsequently shared according to responsibility. Missing the time limit will result in the inability to determine the cause of death; Third, keep the payment receipts and verify the qualifications of medical personnel. After the lawyer assesses the fault and causality, the order of appraisal, mediation or litigation shall be determined to avoid emotional conflicts that consume evidence and opportunities.

IV. Suggestions for Protecting Rights

  • In the event of a dispute, first seal and copy the medical records and check the signatures. Request the imaging materials and original data together, and have both parties sign the sealing list.
  • If the cause of death is unknown or there are disputes over the cause of death, remember the 48-hour autopsy deadline. Under frozen storage conditions, the deadline can be extended to seven days.
  • First, a professional lawyer assesses the fault and causality, and then selects a method of negotiation, people's mediation, or litigation. Appraisals are usually commissioned by the court during litigation.
  • The claim for compensation is based on the appraisal opinion, and the statute of limitations for litigation is three years. You can refer to it for reference.Personal injury legal servicesOrBeijing Henglu Law FirmEvaluate the plan.

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·Beijing Henglue Law Firm