[Handling Attorney] Lu Zongxing

[Keywords] Medical Injury Liability Disputes

【Key Points of the Ruling】

Plaintiff Li Mouyan was admitted to a certain Chinese and Western medicine hospital due to multiple hepatic hemangiomas. During surgery, while attempting to embolize the responsible blood vessels, the medical staff mistakenly identified the wrong vessels supplying the hemangiomas, causing contrast agent to enter and block the spinal cord’s blood supply vessels. After Plaintiff Li Mouyan developed neurological impairment symptoms, the hospital involved failed to promptly investigate and address the issue, ultimately resulting in Li’s paralysis, Grade I disability, and complete dependency on care. The relevant medical malpractice was determined by a judicial appraisal agency to assign equal responsibility to the hospital. Dissatisfied with the assigned liability ratio, Li turned to Attorney Lu Zongxing. Following a thorough case analysis and meticulous preparation, Attorney Lu successfully exposed critical flaws in the appraisal opinion and logical errors in the determination of liability through cross-examination of the appraiser in court. As a result, the judge ruled that the hospital should bear 65% of the compensation liability. Subsequently, the second-instance court upheld the original judgment, significantly increasing the amount of compensation awarded to Li and enhancing the proportion of claims for subsequent related expenses.

[Basic Facts of the Case]

Plaintiff Li Mouyan filed a lawsuit against the defendant, a certain Chinese and Western medicine hospital, due to a dispute over liability for medical damages. On June 30, 2022, the plaintiff, Li Mouyan, received treatment at the hospital. During the surgery, she suddenly experienced severe lower back pain; after the surgery, she developed paraplegia, with a disability rating of Grade I. A certain forensic appraisal center determined that the hospital had committed several errors, including insufficient preoperative assessment, inadequate informed consent, and failure to provide timely emergency care after the surgery, all of which bore an equal causal relationship to the resulting harm.

【Judgment Result】

The defendant, a certain Chinese-Western hospital, shall compensate the plaintiff, Li Mouyan, the sum of 1,725,510.787 yuan (specific items are detailed in the reasoning behind the judgment).

【Reasoning of the Ruling】

On June 30, 2022, the plaintiff Li Mouyan was hospitalized at the defendant’s Chinese and Western Medicine Hospital for “hepatic cavernous hemangioma and angioma.” On July 4, 2022, the defendant’s Chinese and Western Medicine Hospital performed a “DSA-guided hepatic angioma embolization procedure” on the plaintiff Li Mouyan. Following the surgery, the plaintiff Li Mouyan developed “spinal cord injury, with muscle strength of Grade 0 in both lower limbs, absent patellar and Achilles tendon reflexes (bilaterally), positive pathological signs (bilaterally), and impaired deep and superficial sensation from the umbilical level down to below the perineal region, with inaccurate localization.” Since then, the plaintiff Li Mouyan has been receiving rehabilitation treatment at the defendant’s Chinese and Western Medicine Hospital. Both the plaintiff and the defendant’s Chinese and Western Medicine Hospital do not dispute the aforementioned facts, which this court hereby confirms.

Regarding medical negligence and the causal relationship: First, during the litigation process, upon application by the plaintiff Li Daoyan, both parties agreed to select a certain provincial forensic identification center to conduct an assessment of medical negligence and the extent of damages. On November 2, 2023, the said provincial forensic identification center issued the Forensic Identification Opinion No. Xiangya Si Jian [2023] Lin Jian No. 730, stating in its opinion that “During the diagnosis and treatment of Li Daoyan, the certain integrated traditional Chinese and Western medicine hospital failed to comprehensively consider his condition prior to surgery, provided insufficient pre- and intraoperative information to the patient, and did not pay adequate attention to his postoperative condition. Specifically, it failed to promptly detect his spinal cord injury and take timely rescue measures, thereby committing negligence. This negligence bears a causal relationship with Li Daoyan’s current condition, and the degree of contributory negligence is considered to be equal.” Although the plaintiff Li Daoyan raised objections to this forensic opinion and requested that the expert witness appear in court for cross-examination, the plaintiff failed to provide sufficient evidence to refute the forensic opinion. The provincial forensic identification center rendered its current forensic opinion based on the available evidence, and there was neither procedural impropriety nor insufficient basis for its conclusion. Therefore, this court does not accept the objections raised by the plaintiff Li Daoyan and declines to permit a re-assessment. In light of the above-mentioned forensic conclusions and the statement in the Forensic Identification Opinion—that “since the medical side did not perform an abdominal CT scan after surgery, based on the currently submitted evidence, it is impossible to determine whether the spinal cord vessels were occluded by embolic agents”—the medical side cannot definitively confirm or rule out the possibility of embolic occlusion. Considering the overall circumstances of this case, this court determines that the defendant, the certain integrated traditional Chinese and Western medicine hospital, shall bear 65% of the responsibility for compensating the plaintiff Li Daoyan’s losses.

The losses claimed by the plaintiff, Li Mouyan, have been duly assessed by this court as follows:

1. Medical expenses totaled 497.9 yuan. The defendant, a certain Chinese and Western medicine hospital, did not object to the medical expenses of 312.9 yuan incurred by the plaintiff, Li Mouyan, during her treatment at the People’s Hospital of a certain province; therefore, this court confirms these expenses. With regard to the 185 yuan in medication purchased by the plaintiff, Li Mouyan, outside the hospital, the plaintiff submitted invoices as evidence. These medical expenses were incurred during the plaintiff Li Mouyan’s treatment period, and given that the plaintiff suffers from severe defecation dysfunction and severe urinary dysfunction, the purchase of these medications outside the hospital is consistent with her medical condition. Hence, this court accepts and supports the plaintiff’s claim.

2. Loss of earnings: RMB 69,212.4. The plaintiff, Li Mouyan, was employed by a certain development joint-stock company in Guangdong prior to the accident. The screenshot of his individual income tax app submitted by him shows an average monthly income of RMB 4,932. Although the plaintiff, Li Mouyan, claimed that he had other sources of income as well, he failed to provide any evidence to substantiate this claim, and thus the court does not accept his assertion. Therefore, the plaintiff, Li Mouyan’s loss of earnings should be calculated based on actual circumstances. Since the aforementioned development joint-stock company in Guangdong continued to pay Li Mouyan’s salary until August 2022, there was no reduction in his income during July and August 2022. Consequently, the plaintiff, Li Mouyan’s loss of earnings should be calculated from September 1, 2022, up to the day before the date of determination of disability—November 1, 2023—totaling RMB 69,212.4 (RMB 4,932/month × 14 months + RMB 4,932/month ÷ 30 days × 1 day).

3. The hospitalization nursing fee amounts to 220,538.86 yuan. Plaintiff Li Mouyan claims that the hospitalization nursing fee should be calculated provisionally up to March 24, 2025. Since Plaintiff Li Mouyan has not yet been discharged as of today, although Defendant Certain Chinese and Western Medicine Hospital argues that Li Mouyan has met the discharge criteria, it has failed to provide medical records or physician orders to substantiate this claim; therefore, this court does not accept such argument. Consequently, this court adopts Plaintiff Li Mouyan’s claim and determines the period for calculating the hospitalization nursing fee to be 998 days. Regarding the calculation base, both parties have confirmed that during Li Mouyan’s hospitalization, his wife, Xiang Min, provided care. This court accepts this confirmation. However, the bank transaction records submitted by Plaintiff Li Mouyan only demonstrate the income received into Xiang Min’s account over the three years preceding the accident and cannot prove that all of these funds were derived from her labor or business income. Moreover, without additional corroborating evidence, it is impossible to establish her average income level. Therefore, Plaintiff Li Mouyan’s claim to calculate the hospitalization nursing fee based on this evidence lacks sufficient basis. Accordingly, this court determines, at its discretion, that Xiang Min’s loss of earnings due to providing care for Plaintiff Li Mouyan shall be calculated according to the annual average wage of employed persons in private urban enterprises across the province, totaling 220,538.86 yuan (80,658 yuan/year ÷ 365 days × 998 days).

4. The post-treatment care expenses amount to 547,500 yuan. According to the assessment, the plaintiff Li Mouyan currently requires complete dependency on nursing care; therefore, the post-treatment care expenses are tentatively calculated based on a period of 5 years. Since the plaintiff Li Mouyan has not yet been discharged from the hospital, and the defendant, a certain Chinese and Western medicine hospital, has failed to provide evidence demonstrating that the plaintiff has met the discharge criteria and no longer requires inpatient treatment, combined with the fact that the plaintiff Li Mouyan has a Grade I disability, the plaintiff’s claim to calculate post-treatment care expenses at a rate of 150 yuan per day and with two caregivers is reasonable and well-founded. This court accordingly supports the plaintiff’s claim and calculates the post-treatment care expenses as follows: 547,500 yuan (150 yuan/day × 365 days/year × 5 years × 2 persons).

5. Transportation expenses: RMB 14,329. The plaintiff, Li Mouyan, was assessed as having “paraplegia with muscle strength grade 0 due to spinal cord injury, accompanied by severe bowel dysfunction and severe urinary dysfunction, constituting Grade I disability,” making it difficult for him to travel by public transportation. From the inpatient department of the defendant’s certain Chinese and Western medicine hospital to the forensic examination center in a certain province, the car journey takes approximately 7 to 8 hours. Considering the plaintiff Li Mouyan’s physical condition, it is reasonable for him to travel by ambulance. Moreover, the plaintiff Li Mouyan has submitted invoices proving that he actually incurred expenses totaling RMB 9,000 for this purpose, which this court finds credible. Both parties do not dispute the remaining transportation expenses of RMB 5,329. Therefore, this court determines the total transportation expense loss to be RMB 14,329.

6. The inpatient meal allowance amounts to 99,800 yuan. As previously mentioned, although the defendant, a certain Chinese and Western medicine hospital, argued that the plaintiff, Li Mouyan, had already met the discharge criteria, it failed to provide medical records or physician orders as evidence. Furthermore, it did not present any evidence to show that it had notified the plaintiff, Li Mouyan, of her discharge. Therefore, this court does not accept its defense and, based on this, calculates the inpatient meal allowance at 99,800 yuan (100 yuan/day × 998 days).

7. Nutritional expenses: 5,000 yuan. The medical injury involved in this case has resulted in Grade I disability for the plaintiff, Li Mouyan. Given that the plaintiff, Li Mouyan, indeed requires supplemental nutrition during rehabilitation, this court determines the nutritional expenses to be 5,000 yuan.

8. Disability compensation: RMB 1,437,855. The plaintiff, Li Mouyan, has been certified as having a Grade-I disability. Her mother is over 75 years old, and there are supporting documents—including certificates issued by the civil affairs department and the village committee—as well as medical records—confirming that her younger brother has lost the ability to provide support due to a mental illness. Based on these circumstances, the plaintiff Li Mouyan claims a disability compensation of RMB 1,232,580 (RMB 61,629 per year × 20 years) and living expenses for dependents amounting to RMB 205,275 (RMB 41,055 per year × 5 years). The bases, duration, and disability coefficient claimed by the plaintiff all comply with the relevant regulations and are legally justified; therefore, this court supports the plaintiff’s claims.

9. The expense for assistive devices for disability amounts to 141,416.65 yuan. First, during the proceedings of this case, at the request of the plaintiff Li Mouyan, this court randomly selected a judicial appraisal center affiliated with a certain university to conduct an appraisal on “the necessity of assistive devices and their replacement cycle.” However, the center declined to accept the commission. Subsequently, this court sought the opinion of the Prosthetics and Rehabilitation Center of a certain province (which has since been merged into the Social Welfare Center of that province) regarding the configuration of assistive devices for the plaintiff Li Mouyan; yet, even this center was unable to provide a definitive opinion. Under these circumstances, it is reasonable for the plaintiff Li Mouyan to independently seek out institutions and experts with specialized knowledge nationwide to obtain an opinion on the configuration of assistive devices. Second, Article 41 of the “Several Provisions of the Supreme People’s Court on Civil Litigation Evidence” stipulates: “If one party independently commissions an institution or expert to render an opinion on a specialized issue, and the other party has evidence or grounds sufficient to refute such opinion and requests a judicial appraisal, the people’s court shall grant such request.” Based on the above provision, in this case, the Yunnan Judicial Appraisal Institute possesses the qualification for forensic clinical appraisals, and its appraisers hold certificates issued by the competent judicial administration authority as prosthetic appliance practitioners. Therefore, the opinion rendered by this institute constitutes an opinion independently commissioned by one party on a specialized issue. Finally, the specialized opinion issued by the Yunnan Judicial Appraisal Institute indicates that the configuration, price, and replacement cycle of the assistive devices are consistent with the degree of disability suffered by the plaintiff Li Mouyan and comply with the provisions of the “Guangdong Province Catalogue of Assistive Devices for Work-Related Injury Insurance and Maximum Payment Limits,” which can serve as a reference. Furthermore, the defendant, a certain Chinese and Western medicine hospital, failed to present any evidence to refute this opinion. Consequently, this court accepts and adopts the specialized opinion. Taking into account the plaintiff Li Mouyan’s medical condition, degree of disability, and the service life of each device, this court determines the compensation period for now to be five years, resulting in an amount of 141,416.65 yuan for assistive devices for disability {[（45,000 yuan + 3,500 yuan + 3,200 yuan）÷3 + 4,100 yuan ÷ 2 + 750 yuan × 12] × 5}. Should it become necessary to continue the configuration of assistive devices upon expiration of this period, the plaintiff may file a separate claim.

10. The fee for copying medical records is 757 yuan. The plaintiff, Li Mouyan, claimed that the fee for copying medical records was 757 yuan and submitted invoices and receipts as evidence. The defendant, a certain Chinese and Western medicine hospital, did not object to this claim. Therefore, this court accepts and supports the plaintiff’s claim.

11. The cost of nursing supplies during hospitalization amounted to 1,275.17 yuan. This expense was incurred during the plaintiff Li Mouyan’s hospitalization period and should be calculated based on actual expenses. The defendant, a certain Chinese and Western medicine hospital, argued that the expense should be calculated at 750 yuan per month, but this claim lacks justification and is therefore not supported by this court. Based on the payment records submitted by the plaintiff Li Mouyan, the court determined that the actual amount for this expense is 1,275.17 yuan.

12. The subsequent medical expenses are zero yuan. The plaintiff, Li Mouyan, has not provided any expert opinion or medical orders regarding the claimed subsequent medical expenses. Moreover, considering that the plaintiff, Li Mouyan, is still hospitalized and will need to remain bedridden for an extended period, requiring treatment for complications associated with prolonged bed rest as directed by a physician, the specific costs cannot be estimated at this time. Therefore, the plaintiff, Li Mouyan, may file a claim for these expenses once they are actually incurred, based on actual amounts.

13. The appraisal fee amounts to 16,450 yuan. The plaintiff, Li Mouyan, paid an appraisal fee of 11,450 yuan to a certain judicial appraisal center in a certain province, and provided an invoice as proof, which this court accepts. As for the 2,600 yuan claimed by the plaintiff, Li Mouyan, for the travel expenses of the appraiser from the said judicial appraisal center appearing in court, given that the plaintiff did not provide sufficient evidence to refute the appraisal report despite having requested the appraiser’s appearance in this case, the travel expenses incurred by the appraiser should be borne by the plaintiff, Li Mouyan herself. Therefore, this court does not accept this expense. Regarding the 5,000 yuan paid by the plaintiff, Li Mouyan, to a certain judicial appraisal institute in Yunnan, she submitted an invoice, a statement of circumstances, and payment records as evidence. Considering that the said judicial appraisal institute is located in Yunnan and that it was indeed necessary for the relevant appraiser to travel to the plaintiff Li Mouyan’s hospitalization location for an on-site examination, this court finds that these expenses were actually incurred. Since these expenses arose from the medical damage involved in the case and were actually incurred to determine the plaintiff Li Mouyan’s losses, this court accepts them. For convenience of calculation, this court combines these expenses with the appraisal fee and totals them at 16,450 yuan.

The total amount of the above-mentioned expenses is 2,554,631.98 yuan. Of this amount, 65%, or 1,660,510.787 yuan, should be compensated by the defendant, a certain Chinese and Western medicine hospital. Meanwhile, the plaintiff, Li Mouyan, claims compensation for mental distress in the amount of 100,000 yuan. Considering that Li Mouyan has been assessed as having a Grade I disability, and taking into account both Li Mouyan’s personal circumstances and the degree of fault attributable to the defendant, the Chinese and Western medicine hospital, this court determines the compensation for mental distress to be 65,000 yuan. Accordingly, the defendant, a certain Chinese and Western medicine hospital, shall compensate the plaintiff, Li Mouyan, a total of 1,725,510.787 yuan in this case.

【Relevant Statutes】

Supreme People's Court’s “Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases” and “Supreme People's Court’s Interpretation on Several Issues Concerning the Determination of Liability for Compensation for Non-Material Damage in Civil Tort Cases”

[Lawyer’s Perspective]

Medical malpractice cases often rely heavily on forensic expert opinions, and judicial practice frequently sees situations where the expert opinion is used in place of a full trial. In this case, through a comprehensive analysis drawing on medical expertise, legal principles, and common-sense logic, we successfully demonstrated the flaws and inaccuracies in the expert opinion. By employing skillful courtroom advocacy techniques, we enabled the judge to clearly recognize these shortcomings, ultimately leading the judge not to fully adopt the expert opinion but instead to shift the focus back to the trial itself and exercise discretionary judgment in determining the proportion of compensation liability. This underscores that expert opinions are not sacrosanct and do not automatically guarantee objectivity and fairness. Even in the face of flawed expert opinions, a thorough and rigorous objection process can still turn the tide and help clients secure their maximum lawful interests.