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A Study on the Allocation of Burden of Proof in Medical Negligence Lawsuit

Author: YeJian
Tutor: ChenGang
School: East China University of Political Science
Course: Legal
Keywords: Medical liability for damage Prove the allocation of responsibility The balance of interests
CLC: D925.1
Type: Master's thesis
Year: 2011
Downloads: 54
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Abstract

Medical damage liability reasonable allocation of the burden of proof should be in line with the principle of balance between doctors and patients interests, according to the main line of this paper, the use of the comparative analysis of normative analysis and empirical analysis in a more systematic grasp the extraterritorial medical proof of liability for damage theory and the allocation of responsibilities on the basis of the system, combined with our legislation and the theory of the status quo, and put forward the idea of ??reform the Perfection of medical liability for damage to prove the responsibility of the distribution system. Text composed by three parts of the introduction, body and conclusion. The introductory section briefly addressed the topics of motivation and meaning, and within comments Research on this topic, also explained the basic idea of ??this study. The first part of the medical tort cases the cause of action that either applies to tort liability, can also apply to liability for breach of consumer protection laws can also apply. Then, from the characteristics of medical practices on medical tort has a professional and evidence of bias in other features. On this basis, the paper argues that medical tort is a special implementation of the General Principles of Responsibility infringement, although in principle to implement the principle of fault liability, but the specific allocation of burden of proof. The second part of the major countries of Two Schools medical proof of liability for damage liability allocation rules introduced and assessment. Mitigate or conversion of specific burden of proof to the table to see the proof of major medical negligence, including the fact that a witness in the principles of Anglo-American law, German law and that hinder roughly presumption jurisprudence, Japan and France, indirect evidence to the contrary, and the probability of identified. From the emergence and development of these rules or legal point of view, they are designed to reduce the patient's burden of proof, and creation through judicial practice, its use throughout the proceedings the whole process. The third part of our medical liability for damage that the responsibility assigned legislative brief. Them that medical mistakes and causation \prove that the problem has to do a lot of regulations, but there are some problems to be clear or imperfections. Part IV on how to improve the country's medical liability for damage to prove that the system of allocation of responsibilities from the five aspects of the concept of the system. First, the fault of the burden of proof of medical technology to implement the normal distribution of the burden of proof rules, medical ethics are the fault of the implementation of the presumption of fault. Second, the proof of the causal relationship of medical damage, in addition to learn from foreign table to prove, to prove handicapping jurisprudence, but also can be considered by the cases in Xie Ming obligation the responsibility to bear the burden of proof, and can be considered appropriate to reduce the standard of proof by the medical side. Again, medical products, the implementation of the no-fault liability, so the burden of proof to implement inverted, but by the particularity of medical products, appropriate compensation is appropriate only in relief in patients with damage. Thirdly, the expansion of the patients the ability to collect evidence and means, can play a positive role in the burden of proof is difficult for patients with medical damage liability litigation. Taking into account the actual situation of our country, should strengthen the terms of reference of the court's intervention, and the pre-litigation should pay attention to the protection of the patient's right to evidence collection. Finally, in addition to the evidence ready to capacity expansion in patients with evidence-gathering ability and means to enhance the medical side is to resolve litigation proved difficult. Conclusion The full text summary, and think that you can learn from foreign by judicial practice law, to change the overly rely on legislation to address the problem of medical liability for damage that liability assigned regulation, but should be in the discretion of the judges on the program.

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