The following is a general instruction we prepare in line with the Civil Code of the PRC:
1. How to collect evidence?
If a patient believes that there is a medical malpractice, they should contact the medical affairs department（医务科）of the hospital as soon as possible to file a complaint and request a copy of their medical records. Together with a representative from the hospital, they should seal the medical records, including diagnosis and treatment records, hospital records, surgical consent forms, medical consultation records, and discussion records, as well as all other relevant documents. They should also request a receipt for the complaint form regarding the medical malpractice from the medical affairs department.
If the hospital is unwilling to cooperate in copying and sealing the medical records, there is no need to worry too much because according to Article 4 of the Supreme People’s Court’s provisions on evidence in civil litigation, the burden of proof is reversed in medical disputes. If the patient meets the basic conditions for filing a lawsuit and the court agree to accept the filing, the hospital has the obligation to prove that there is no causal relationship between their medical actions and the resulting harm, as well as the absence of medical negligence.
In other words, the hospital needs to provide relevant evidence to prove that they had no negligence during the medical process.
Then, in order to achieve the goal of filing a case, the patient needs to prove the following:
1. Whether there is a doctor-patient relationship;
2. Whether there is evidence of harm to the patient;
3. Whether there are actual losses and the extent of the losses.
The patient must carefully preserve any receipts and documents from the initial visits ( You may check our previous post: How to File a Lawsuit in China (P2-evidence) for more information). Only when the evidence provided by the patient meets the conditions for filing a lawsuit as stipulated in Article 108 of the Civil Procedure Law, will the people’s court accept the case.
2. Is it necessary to conduct an appraisal in the event of a medical malpractice?
There is no legal requirement that medical malpractice litigation must undergo a medical accident appraisal. Medical accident appraisal is not a prerequisite for medical malpractice litigation. Generally speaking, as long as the patient has evidence to prove that they or their deceased relatives received diagnosis and treatment from a hospital and were harmed as a result, they can directly file a lawsuit with the court to claim compensation, and the court should accept the case.
3. What compensation can be claimed and how much?
Article 50 of the “Regulations on the Handling of Medical Accidents” stipulates that the calculation of compensation for medical malpractice shall be based on the following items and standards:
(1) Medical expenses
Calculate the medical expenses incurred for the treatment of the physical harm caused to the patient by the medical malpractice and provide reimbursement based on receipts. If further treatment is required after the case is closed, basic medical expenses shall be provided.
(2) Lost income
If the patient has a fixed income, calculate the reduction in fixed income due to lost work, and for income exceeding three times the average annual wage of employees in the place where the medical accident occurred, compensation shall be calculated based on three times the income reduction; if there is no fixed income, compensation shall be calculated based on the average annual wage of employees in the place where the medical malpractice occurred.
(3) Subsistence allowance during hospitalization
Calculate based on the subsistence allowance standards for general government staff on business trips in the place where the medical malpractice occurred.
(4) Accompanying expenses
If a patient requires someone to accompany them during hospitalization, calculate based on the average annual wage of employees in the place where the medical accident occurred.
Please be noted that: the statute of limitations for medical compensation disputes is three years, and the court will not protect rights that have been damaged for more than twenty years.
