[Direct answer]In the Beijing area, it can be argued that the key point is to prove that the medical institution violated the medical treatment norms and was at fault. According to Article 121 of the Civil Code of the People's Republic of China, if a patient suffers harm 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; Article 122 stipulates that medical staff shall explain the patient's condition and medical measures and obtain clear consent; Article 123 specifies that if the medical institution violates the medical treatment norms, or conceals, refuses to provide, loses, forges, alters, or illegally destroys medical records, it shall be presumed that the medical institution is at fault. After discovering this, the patient should immediately copy and apply for the sealing of all medical records, pay attention to the three-year statute of limitations (Article 188), and apply for a medical injury appraisal in a timely manner.

1. Problem background and typical scenarios

Preoperative examination is a fundamental step in surgical treatment: blood routine examination, coagulation function assessment, electrocardiogram, imaging examination, and necessary cardiopulmonary function evaluation are directly related to the surgical plan, anesthesia method, and risk prediction. In reality, some patients have reported that hospitals failed to complete certain necessary examinations before surgery, only to discover misdiagnosis or missed diagnosis after surgery, resulting in delayed treatment, secondary surgery, or even disability. Common situations include: performing surgery without pathological or imaging confirmation before surgery; incomplete examination in emergency situations; and missed diagnosis of tumors due to omissions in physical examination institutions. When handling such consultations in the Beijing area, patients are most concerned about whether the hospital is at fault, whether they can successfully obtain their medical records, and how compensation should be calculated.

II. Key points of contention

First, the proof of fault and causality. Medical liability requires that the medical institution be at fault, and it is necessary to prove that the medical treatment violates laws, administrative regulations, rules, and other relevant treatment norms, and that there is a causal relationship between the fault and the damage consequences. Second, the fixation of medical records. Medical records are kept by the medical institution, and patients and their close relatives have the right to consult, copy, and request the sealing of them; if the medical institution conceals, refuses to provide, loses, or falsifies, alters, or illegally destroys the medical records, it is presumed that it is at fault. Third, the role of appraisal. In most cases, it is necessary to determine the degree of fault and participation through medical damage appraisal or judicial appraisal, and the appraisal conclusion has a great impact on the compensation ratio. Fourth, exemption from liability. If the patient does not cooperate with the treatment, the medical staff have fulfilled their reasonable treatment obligations corresponding to the current medical level, or it is difficult to treat according to the current medical level, the medical institution shall not bear the liability for compensation.

III. Professional analysis by Henglue Lawyers

The experience of Henglue in handling medical disputes shows that patients are most likely to lose out on evidence and time. The first thing to do is not to argue with the hospital, but to copy and apply for the sealing of all medical records as soon as possible, including outpatient records, hospitalization notes, medical orders, examination reports, surgical and anesthesia records, nursing records, disease progress records, and imaging materials. The second thing is to keep all payment receipts, diagnosis certificates, and referral records to avoid a lack of comparison in subsequent appraisals. The third thing is to apply for a medical damage appraisal in a timely manner to clarify the fault and degree of involvement. In the judicial practice of Beijing, the court relies heavily on appraisal opinions. If the application for appraisal exceeds the time limit for providing evidence or the materials submitted for appraisal are incomplete, it will often significantly weaken the patient's claims. It should be noted that if the medical institution is at fault, it does not necessarily bear all responsibility. The compensation ratio is usually linked to the degree of involvement in the fault, so the amount of the claim should be calculated based on the appraisal conclusion and the list of losses to avoid making a blind bid. Medical services simultaneously involve two bases of claim, namely infringement and contract. When choosing which path to take, one should balance the difficulty of providing evidence and the scope of compensation.Personal injury and medical disputesYes, you should also pay attention to the compatibility withContract disputesThe connection between the rules.

IV. Practical suggestions and legal basis

According to Articles 1218, 1219, 1222, and 1225 of the Civil Code of the People's Republic of China (adopted on May 28, 2020 and implemented on January 1, 2021), if a patient suffers harm 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; medical staff shall explain the patient's condition and medical measures to the patient, and if surgery, special examinations, or special treatments are necessary, they shall promptly inform the patient or their next of kin of the medical risks and alternative treatment options and obtain their explicit consent; if the medical institution violates laws, administrative regulations, rules, or other relevant treatment norms, or conceals, refuses to provide, loses, falsifies, or illegally destroys medical records, it shall be presumed to be at fault; the medical institution shall properly preserve hospital records, medical orders, examination reports, surgical and anesthesia records, pathological materials, nursing records, and other medical records. If the patient requests to review or copy the above-mentioned medical records, the medical institution shall provide them promptly. Article 1224 stipulates exemption from liability in cases such as the patient's non-cooperation with the treatment, the medical staff's fulfillment of reasonable treatment obligations, and the difficulty of treatment due to the limited level of medical technology at that time. Article 188 stipulates that the general statute of limitations is three years. Suggestions: First, immediately copy and apply for the seal of all medical records, and sign the sealed documents to confirm their completeness; Second, keep the diagnosis certificates, payment receipts, referral and follow-up records, and prepare a complete timeline of the treatment process; Third, promptly apply for a medical damage appraisal, and if there are objections to the appraisal opinion, the patient may apply for a re-appraisal or request the appraiser to appear in court to explain; Fourth, list the losses by items such as medical expenses, nursing fees, loss of income, and disability compensation, and keep the receipts.

5. Henglue Law Firm's Reminder

The critical time points in medical disputes are often very short: the earlier the medical records are sealed, the less room there is for modification; the timelier the appraisal application is made, the more complete the chain of evidence will be. Three points need to be reminded: First, do not rashly sign a one-time settlement agreement when the hospital proposes reconciliation. Before signing, you should evaluate the subsequent rehabilitation, secondary surgery, and disability risks, and if necessary, reserve the space for claiming compensation for subsequent treatment; Second, in cases involving patient death, close relatives have the right to access, copy, and seal the medical records, and should claim these rights in a timely manner; Third, appraisal fees, litigation fees, and attorney's fees constitute the cost of safeguarding rights. For cases with large amounts, it is recommended to conduct a feasibility assessment before initiating legal action. If the other party fails to fulfill their obligations after the judgment takes effect, you can take legal action through the court system.EnforcementImplement the compensation; if the case involves appraisal disputes or multiple parties' responsibilities, it can be combined with other evidence to determine the liability of the parties involved.Specialised legal servicesAdvance overall progress. For more guidance, please refer to the following document.Beijing Henglue Law FirmOfficial website.

VI. Frequently Asked Questions

Q1: If the hospital failed to conduct necessary preoperative examinations, resulting in a misdiagnosis, could the patient win the lawsuit?

It depends on whether it can be proven that the hospital violated the medical treatment norms and there is a causal relationship between the violation and the harm caused. If necessary examinations were not conducted before the surgery and a misdiagnosis was found after the surgery, it is usually necessary to conduct a medical malpractice appraisal to determine the fault and degree of participation, and the appraisal opinion has a great impact on the outcome. If the hospital conceals, refuses to provide, or falsifies or alters the medical records, it is legally presumed that it is at fault. It is recommended to first complete the fixation of the medical records and the feasibility assessment of the appraisal before suing the hospital.

Q2: What evidence do I need to prepare for protecting my rights?

Outpatient and inpatient medical records, examination reports, surgical and anesthesia records, imaging materials, diagnostic certificates, referral and follow-up records, and payment receipts; if applying for appraisal, applicants are also required to submit appraisal materials and cooperate with cross-examination. If the medical records are kept by the medical institution, patients and their close relatives have the right to review, copy, and request sealing. When sealing the materials, they shall check their completeness and sign and confirm on the sealed materials to avoid disputes over missing materials in the future.

Q3: What are the approximate costs of attorney fees and litigation fees?

The litigation fees are calculated in stages according to the amount of the litigation subject, and are paid in advance by the plaintiff. After the judgment, they are borne according to the proportion of liability. The medical damage appraisal fees are usually paid in advance by the applicant, and are finally shared according to the proportion of liability. The attorney's fees are determined through consultation based on the amount of the dispute, the appraisal, and the workload of the trial. It is recommended to specify the charging method and amount in the power of attorney contract.

Q4: How long does the rights protection process take?

The first-instance trial usually lasts three to six months, and it will take longer if it involves medical damage appraisal, disability rating appraisal, or service by public notice. The second-instance trial also takes three to six months. The appraisal period often accounts for most of the time, and it often takes more than a year from filing the case to issuing the judgment. It is recommended to plan the funding and time arrangements in advance.

Q5: If you suspect that the hospital failed to conduct preoperative checks, what should you do first?

Immediately copy and apply for the sealing of all medical records, including examination reports, medical orders, and surgical records, and at the same time keep the diagnosis certificates and payment receipts; then make a timeline of the diagnosis and treatment, evaluate the correlation between the missed examination items and the damage consequences, and then decide whether to apply for a medical damage appraisal and file a lawsuit, paying attention to the three-year statute of limitations for litigation.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Lawyers for specific situations.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In the event of a dispute, please consult a practicing lawyer in a timely manner.