[Direct answer]There are two scenarios: if the medical accident technical appraisal organized by the medical association determines that it is a medical accident, the appraisal fee shall be paid by the medical institution; if it is not a medical accident, it shall be paid by the party who filed the application for handling (Article 34 of the Regulations on the Handling of Medical Accidents, implemented on September 1, 2002). In litigation, the party who requests the judicial appraisal of medical damage shall pay the appraisal fee in advance, and the court shall order the parties to share the fee according to the outcome of the litigation or the proportion of liability. If the party is not satisfied with the conclusion of the first technical appraisal, it may apply for a re-appraisal within 15 days from the date of receipt of the appraisal report. It is recommended to first seal the medical records, assess the fault, and then initiate the appraisal. For more details, please consult with us.Legal services for personal injury and medical disputesAndBeijing Henglu Law Firm.

I. Problem Background and Typical Scenarios

To resolve medical disputes and obtain compensation, appraisal is usually an indispensable step: the determination of fault and causality highly relies on medical professional judgment, while appraisal fees often range from thousands to tens of thousands of yuan. Who pays the advance and who ultimately bears the cost directly determines the cost of litigation and the strategic choices of the patient's side. Typical scenarios include: during the negotiation stage, both the doctor and the patient jointly commission the Medical Association to conduct technical appraisal; after suing, the court commissions a forensic appraisal institution to conduct medical damage appraisal; when dissatisfied with the appraisal conclusion, applying for a second appraisal or a reappraisal; and the medical side delaying cooperation due to the cost burden of the appraisal requested by the patient. Improper cost arrangements may not only increase costs, but also lead to stagnation of the appraisal process and wasted time for evidence collection.

II. Key points of contention

  • Separation of advance payment and final burden: The party applying for appraisal usually needs to make an advance payment first, but advance payment does not equal final assumption of responsibility. Who will ultimately bear the burden depends on the appraisal conclusion and the proportion of liability. Many parties confuse the two and misjudge the cost of protecting their rights.
  • The linkage between the conclusion and the burden of costs: the provision that medical accidents are paid by the medical side and non-medical accidents are paid by the applicant, and how this provision connects with the ruling in the lawsuit that the losing party or the party at fault bears the costs in proportion to their responsibility, directly affects the decision whether to sue first.
  • The costs of multiple appraisals add up: whether the costs of reappraisal and reassessment are included in the same burden-sharing rule, whether the party at fault should bear the responsibility, and who should bear the losses caused by the delay in appraisal are the main points of controversy in practice.

III. Professional analysis by Henglue Law Firm

Henglue Lawyers typically arrange the appraisal fees and schedule in three steps in medical dispute cases. The first step is pre-litigation assessment: First, in accordance with Article 16 of the "Regulations on the Handling of Medical Accidents", the medical and patient parties jointly seal the medical records, and the lawyer reviews the completeness of the medical records and the compliance of the treatment records with norms, preliminarily assessing the evidence base for fault and causality to avoid applying for appraisal blindly and wasting money. The second step is the negotiation stage: If the parties jointly commission the appraisal, the written agreement shall specify the subject of the advance payment of the fees and the burden-sharing method in the event of an unfavorable conclusion, so as to reduce disputes after the fact. The third step is the litigation stage: The appraising party shall advance the appraisal fees, and the court shall determine the burden-sharing based on the acceptance of the appraisal opinion and the liability ratio. If the medical party is found liable, the appraisal fees shall generally be borne by the medical party in accordance with the liability ratio of the compensation request. In terms of progress control, the Medical Association shall organize the appraisal and issue the appraisal report within 45 days from the date of receipt of the materials and written statements submitted by both parties; the judicial appraisal in litigation shall generally be completed within 30 working days in accordance with Article 28 of the "General Provisions on Judicial Appraisal Procedures" (effective May 1, 2016), and the time limit may be extended in the case of complex and difficult issues, but the extension shall generally not exceed 30 working days. The lawyer shall monitor the progress to prevent procedural stagnation. For special issues such as defects in the medical records and the expert's cross-examination in court, the lawyer may also cooperate with the relevant parties to resolve them.Special services and other case servicesWe handle it collaboratively as a team.

IV. Practical suggestions and legal basis

At the legal basis level: Article 34 of the "Regulations on the Handling of Medical Accidents" (implemented on September 1, 2002) stipulates the rules for bearing the appraisal expenses, and Article 22 stipulates that if the parties disagree with the conclusion of the first technical appraisal of medical accidents, they may apply for a second appraisal within 15 days from the date of receipt of the appraisal report; Article 28 of the "General Provisions on Forensic Appraisal Procedures" stipulates the time limit of 30 working days for completing forensic appraisals and the rules for extending it; Article 29 of the "Method for Paying Litigation Costs" (implemented on April 1, 2007) stipulates that the litigation costs shall be borne by the losing party, and in the case of partial victory and partial defeat, the court shall determine the amount to be borne by each party according to the circumstances of the case; Article 1218 of the "Civil Code" (implemented on January 1, 2021) determines the liability for medical damage, and Article 1222 stipulates that if the medical institution conceals, refuses to provide, or falsifies, alters, or illegally destroys medical records, it shall be presumed that the medical institution is at fault. At the practical advice level: If a dispute arises, immediately request to seal the medical records and on-site materials; if the patient dies and there are objections to the cause of death, an autopsy shall be applied for within 48 hours after the death, and if there are conditions for freezing the body, it may be extended to 7 days (Article 18 of the regulations); retain all appraisal fees and medical expense receipts; entrust a lawyer to review the medical records first and then decide whether to apply for an appraisal. For more details, please consult a lawyer.Legal services for personal injury and medical disputes.

5. Henglue Law Firm's Reminder

The appraisal fee is not the largest cost in medical disputes; the appraisal conclusion is the key to determining compensation. While the burden of costs can be legally contested, once the conclusion is unfavorable, the entire claim will be at a disadvantage. Patients should complete medical record reviews and initial fault assessments before applying for appraisal, and spend the fees on appraisals with solid evidence. For their part, medical providers should cooperate with evidence preservation and appraisal in a timely manner. Delays or poor management of medical records may lead to the presumption of fault in litigation (Article 1222 of the Civil Code) and result in higher costs. Whether to negotiate first, appraise first, or sue directly depends on a comprehensive assessment of the strength of the evidence and the cost of time. For case-specific evaluations, please contact us for further assistance.Beijing Henglue Law FirmMake an appointment for an interview, and the lawyer will provide an appraisal and a roadmap for claiming compensation.

Q1: Is it necessary to conduct an appraisal in medical disputes? Can one win the lawsuit without doing so?

The vast majority of medical malpractice cases require expert appraisal. According to Article 1218 of the Civil Code, medical institutions or their medical staff shall bear liability for compensation only if they are at fault, and the determination of fault and causality highly relies on medical professional judgment. Without an expert appraisal opinion, it is generally difficult for the court to directly support the patient's claim for compensation. The exception is the case where fault can be presumed according to Article 1222, such as when the medical party conceals or refuses to provide medical records, falsifies or illegally destroys medical record information, etc. In this case, there is a chance of winning the case without expert appraisal. Therefore, before suing, it is necessary to first seal and review the medical records, conduct a preliminary assessment of fault, and then decide on the appraisal strategy, rather than initiating the procedure hastily.

Q2: How much is the appraisal fee, approximately? Who should pay it upfront?

The fees for technical appraisals of medical accidents and judicial appraisals of medical damages vary from region to region, with most ranging from a few thousand yuan to tens of thousands of yuan, depending on the number and difficulty of the appraisal items. Regarding the advance payment rules: For technical appraisals organized by medical associations, according to Article 34 of the "Regulations on the Handling of Medical Accidents", if the appraisal concludes that it is a medical accident, the medical institution shall pay the fees; if it is not a medical accident, the party who requested the appraisal shall pay the fees. For judicial appraisals in litigation, the party requesting the appraisal shall advance the payment, and the court shall ultimately order the parties to share the costs according to the outcome of the litigation or the proportion of liability, in accordance with Article 29 of the "Measures for the Payment of Litigation Costs". Advance payment does not equal final responsibility, and all receipts must be preserved as the basis for subsequent recovery and cost sharing.

Q3: What should I do if I disagree with the appraisal conclusion?

There are two paths: Firstly, if you disagree with the conclusion of the first technical appraisal of a medical accident, according to Article 22 of the "Regulations on the Handling of Medical Accidents", you can submit an application for a second appraisal within 15 days from the date of receiving the appraisal report. The appraisal will be organized by the provincial medical society. Please note that the time limit is relatively short, and the right to appeal will be lost if it is exceeded. Secondly, if you have objections to the judicial appraisal opinion in litigation, you can request the appraiser to testify in court. If there are still statutory grounds for applying for a re-appraisal after cross-examination, such as serious violations of the appraisal procedures or obvious insufficient appraisal basis, etc., you can apply for a re-appraisal. After receiving the conclusion, you should promptly entrust a lawyer to review the reasoning and basis of the appraisal opinion paragraph by paragraph to determine whether to proceed with a second appraisal or refute the appraisal through cross-examination. The two paths cannot be mixed.

Q4: How long does it take from applying for an appraisal to reaching a conclusion? And how long will the lawsuit last?

The technical appraisal organized by the Medical Association, in accordance with Article 29 of the "Regulations on the Handling of Medical Accidents", shall organize the appraisal and issue the appraisal report within 45 days from the date of receiving the materials and written statements submitted by the parties; the judicial appraisal entrusted in litigation, in accordance with Article 28 of the "General Procedures for Judicial Appraisal", shall generally be completed within 30 working days. For complex and difficult cases, the time limit may be extended, but the extension shall generally not exceed 30 working days. If the case itself is subject to ordinary procedures, it shall be concluded within six months from the date of filing, in accordance with Article 152 of the "Civil Procedure Law". Adding the appraisal and possible re-appraisal steps, the whole process often takes about a year. During this period, attention should be paid to the statute of limitations and the preservation of evidence.

Q5: What should the family do immediately after the patient passes away?

Three things: First, request to seal the medical records immediately, and have both the patient and the doctor present to seal and sign the records (Article 16 of the "Regulations on the Handling of Medical Accidents"), to prevent the medical records from being retroactively recorded or altered. If there are objections to the cause of the patient's death, a post-mortem examination shall be requested within 48 hours after the patient's death. Where the conditions for freezing the body exist, the time limit may be extended to 7 days. If the post-mortem examination is refused or delayed, the party who refuses or delays it shall bear the responsibility (Article 18). At the same time, keep the medical expense receipts, nursing and loss of income certificates, and other evidence of losses. The determination of the cause of death is the basis for subsequent appraisals and claims. Failure to conduct a post-mortem examination within the time limit often leads to the inability to provide evidence, so it is necessary to make a decisive decision within the time limit.

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 Henglue Law Firm