[Direct answer]The cost of secondary surgeries such as the removal of internal fixation devices after fractures falls under the category of follow-up treatment expenses. There are two ways to claim compensation for these expenses: If the necessity of the surgery can be confirmed based on medical certificates or appraisal conclusions, the expenses can be claimed together with the actual medical expenses; if the necessity cannot be determined at the moment, the claim can be filed separately after the surgery actually takes place. This is in accordance with Article 6 of the Judicial Interpretation on Compensation for Personal Injuries and Article 1179 of the Civil Code. In the case of work-related injuries, if it is confirmed that the recurrence of old injuries requires treatment, the employee can continue to enjoy corresponding work-related medical benefits. It is important to retain the discharge instructions, expense lists, and diagnostic certificates, and ensure that all items related to the secondary surgery, such as lost wages and nursing care, are included in the claim.

1. Problem background and typical scenarios

After fractures caused by traffic accidents, falls at construction sites, sports injuries, etc., it is often necessary to implant internal fixation devices such as steel plates and steel nails. These devices need to be removed in a second surgery about a year after the initial procedure, with the cost ranging from thousands of yuan to tens of thousands of yuan. The problems faced by the parties are very practical: If the money hasn't been spent by the time of the first lawsuit, will the court support it? Who will reimburse the subsequent surgery costs? Typical dilemmas include: accepting a settlement that doesn't include follow-up costs out of fear of "too much trouble in future litigation"; omitting the cost of removing internal fixation devices in the settlement or judgment, only to be rejected when seeking reimbursement after the second surgery; and workers' compensation claimants not knowing how to apply for benefits for recurrence of old injuries. If the subsequent treatment costs are not handled properly, these expenses may ultimately have to be borne by the claimant themselves, so it's important to design a plan in advance during the first claim process.

II. Key points of dispute

  • Is the expense "inevitably incurred"? Based on the second-stage surgery instructions, diagnosis certificates, or judicial appraisal opinions issued by the hospital, some courts will also refer to the prevailing standards for the removal of internal fixation devices in the local area.
  • Should we assert claims together or file separate lawsuits? For claims that are inevitable, it's better to assert them together to avoid secondary litigation. For claims that cannot be determined temporarily, it's better to file separate lawsuits after they actually occur. Each approach has its own advantages and disadvantages, and a careful balance needs to be struck between them.
  • The scope of application of the settlement agreement: If you claim for the cost of a second surgery after signing a "one-time settlement" agreement, your claim will often be rejected due to the content of the agreement. Therefore, it is essential to evaluate each clause of the agreement carefully before signing it.

III. Professional analysis by Henglue Lawyers

恒略律师建议把二次手术费的索赔方案前置到第一次诉讼或协商中。第一，主张时机：起诉前取得主治医生出具的「建议二期手术取出内固定」的书面意见，或申请鉴定机构对后续治疗费进行评估鉴定，凭此与本次损失一并主张，避免二次起诉；未能取得的，依《人身损害赔偿司法解释》第6条待实际发生后另行起诉，同样受法律保护，诉讼时效自费用实际发生、数额确定时起算三年。第二，项目完整性：二次手术还伴随误工费、护理费、住院伙食补助费与交通费，若手术影响伤残等级的还应重新评残主张差额，逐项列入勿遗漏。第三，路径区分：工伤职工旧伤复发需要治疗的，依《工伤保险条例》继续享受相应工伤待遇，向工伤保险基金或用人单位主张；交通事故等侵权情形则向侵权人及保险公司主张，保险公司常以「费用未实际发生」抗辩，此时医疗证明与鉴定意见是破局关键。对方拒不履行生效判决的，可依托Creditor-debtor relations | Legal services for enforcement casesApply for enforcement.

IV. Practical suggestions and legal basis

Legal basis: Article 6 of the Judicial Interpretation of Compensation for Personal Injury (amended in 2022) clearly stipulates that the rehabilitation fees necessary for the recovery of organ function, appropriate cosmetic surgery fees, and other follow-up treatment fees may be sued for separately after they actually occur. However, the expenses that are certain to occur according to medical certificates or appraisal conclusions may be compensated together with the already incurred medical expenses; Article 1179 of the Civil Code lists medical expenses as statutory compensation items; Article 30 (medical treatment for work-related injuries) and Article 38 (work-related injury workers who suffer from recurrence of work-related injuries and are confirmed to need treatment shall continue to enjoy corresponding work-related injury benefits) of the Regulations on Work-Related Injury Insurance. Practical suggestions: When handling the case for the first time, ask the doctor in writing about the necessity of secondary surgery and record the opinion in the medical record for preservation; keep the original copy of all expense lists; before the work-related injury worker undergoes recurrence treatment, inquire about the filing process with the social security agency; and clearly specify the method of bearing the follow-up treatment fees in the agreement during the settlement. For cases involving work-related injury identification and benefit calculation, reference can also be made to the relevant provisions.Labor arbitration | Legal services for work-related injury compensation.

5. Henglu Law Firm's Reminder

The cost of secondary surgery is most likely to be overlooked when trying to settle the matter once and for all. Before signing the agreement, it is essential to confirm whether the agreement includes the cost of follow-up treatment and whether the amount is sufficient to cover the actual expenses. Henglue Law Firm advises: If you can claim all the expenses based on medical prescriptions or appraisals, there's no need to leave any unresolved issues; if the cost of secondary surgery significantly exceeds your expectations after signing the agreement, consult a lawyer promptly to assess the validity of the agreement and explore remedies; and keep all original receipts until the compensation is completed. If you are currently facing a claim for follow-up treatment expenses, please feel free to consult us for assistance.Personal Injury | Legal Services for Medical DisputesThe team, or visitBeijing Henglue Law FirmOfficial website.

Q1: Can the cost of the second surgery be claimed together with the first lawsuit?

Yes. According to Article 6 of the Judicial Interpretation on Compensation for Personal Injury, the subsequent treatment expenses that are inevitable according to the medical certificate or the appraisal conclusion can be compensated together with the already incurred medical expenses. In practice, before suing, the attending doctor's written opinion on the necessity of secondary surgery should be obtained, or the court's appraisal should be applied for to assess the amount of subsequent treatment expenses, and these expenses should be claimed together with the first lawsuit to save the time and cost of the second lawsuit. If it is impossible to prove that it will inevitably happen, the court may not deal with this item for the time being. In this case, it can only be sued separately after it actually happens. Therefore, it is particularly important to prepare evidence before the first lawsuit, and it is best to assess the subsequent treatment expenses simultaneously when assessing the disability.

Q2: After the judgment, if I undergo a second surgery, can I still sue for compensation?

Yes. If the follow-up treatment costs were not addressed in the initial judgment or mediation, or if the costs could not be determined at the time, the plaintiff may file a separate lawsuit in accordance with Article 6 of the Judicial Interpretation of Personal Injury Compensation after the second surgery actually takes place, claiming medical expenses for removing internal fixation devices, loss of income, nursing care, hospitalization subsidies, transportation costs, etc. The statute of limitations for such lawsuits is three years, generally calculated from the actual date the expenses were incurred. When filing the lawsuit, the plaintiff should bring the hospitalization records, expense lists, medical orders, and the initial judgment documents of the second surgery to prove the connection between the expenses and the original injury. It should be noted that if the initial settlement agreement already explicitly includes all follow-up costs, it will be more difficult to make further claims. The plaintiff should first have a lawyer evaluate the validity of the agreement's signing process and content before deciding on a litigation strategy.

Q3: Who bears the cost of removing internal fixation devices for workers injured at work?

For workers injured at work, if the expenses required for treating work-related injuries comply with the catalog of medical treatment items, drug catalog, and hospitalization service standards for work-related injury insurance, the expenses will be paid by the work-related injury insurance fund; if the employer has not participated in work-related injury insurance, the employer shall pay all expenses in accordance with the items and standards stipulated in the "Regulations on Work-related Injury Insurance". If the worker suffers from a recurrence of the work-related injury and it is confirmed that treatment is needed, the worker shall continue to enjoy the corresponding work-related injury benefits in accordance with Article 38 of the Regulations. In practice, before receiving treatment for the recurrence, the worker should consult the social security agencies in the coordinated area about the registration and reimbursement procedures, and try to receive treatment at the medical institutions with which a service agreement has been signed. The worker should keep the diagnosis certificate and the list of expenses. Regarding the issues of suspension of work and the payment of benefits, the worker should confirm them in writing with the employer. If a dispute arises, the worker may apply for labor arbitration. It should be noted that the statute of limitations for arbitration is one year.

Q4: Can I still claim compensation for lost income during the second surgery?

Yes. The hospitalization period and the rest period prescribed by the doctor during the second surgery constitute a new period of work loss. The claim for work loss compensation can be made according to the standards of the first lawsuit: for those with fixed income, the compensation shall be calculated based on the actual reduction in income, and the employer shall provide a certificate of work loss and salary deduction, together with the salary payment records; for those without fixed income, the compensation shall be calculated based on the average income of the past three years or the average salary of workers in the same or similar industries in the previous year. At the same time, the claimant can also claim for nursing fees, hospitalization meal subsidies, transportation fees, and nutrition fees during the hospitalization period. If the second surgery results in an increase in the disability grade or the addition of new disability parts, the claimant can apply for a re-assessment of disability, and claim the difference in disability compensation based on the new disability grade. For all these items, the claimant needs to provide medical orders, receipts, and appraisal opinions as evidence on a case-by-case basis, to avoid making general claims.

Q5: What should I do if the insurance company refuses to pay compensation on the grounds that "the expenses have not actually occurred"?

This is a common defense. There are two countermeasures: First, submit the attending physician's certificate or the appraisal opinion on the follow-up treatment costs in the first lawsuit to prove that the costs will inevitably occur, and the court will usually support it; Second, if it is not handled in the first instance, wait until the actual costs occur and file a separate lawsuit with the cost invoices. The insurance company should still pay according to the insurance contract and the liability ratio. It should be noted that the current standard for the compensation limit of medical expenses in compulsory insurance is 18,000 yuan, which may not be enough to cover the costs of two surgeries. The excess part will be compensated by the commercial third-party liability insurance according to the liability ratio, and the insufficient part will be borne by the infringer. When suing, it is crucial to list both the compulsory insurance and commercial insurance companies as defendants and keep a complete list of expenses and medical orders.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Personal injury legal services·Beijing Henglu Law Firm