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The Research on Allotting the Burden of Proof in Medical Dispute

Author: QinJingJing
Tutor: MaAiPing
School: Shanxi University
Course: Procedural Law
Keywords: Medical dispute The allocation of burden of proof Medical liability insurance
CLC: D925.1
Type: Master's thesis
Year: 2009
Downloads: 122
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Abstract

In the current life,medical dispute has become a hot issue.The rational allocation of burden of proof is an important prerequisite for resolving Medical disputes.Without the rational allocation,medical disputes are.Away from the justice and it is difficult to protect the legitimate rights and interests of hospital and patient.In view of the specificity of the medical profession,it is more complicated to find the causal relationship between medical acts and the damage results,so China’s current judicial interpretation of the medical tort litigation use the of inversion of burden of proof,but our country’s burden of proof of medical dispute modes still have some drawbacks.Since April 1,2002,the Supreme People’s Court promulgated the "evidence on the Civil Procedure",since that the dispute on the medical burden of proof and the relationship between doctors and patients increase tensely,with the increasing number of medical disputes,and even criminal cases appeared because the medical disputes have not resolved in a reasonable manner.In order to balance the interests of both doctors and patients and to improve the physician-patient relationship,promote action and found true,it has the realistic social significance to the realization of the distribution of the burden of proof as a starting point of the study.In addition to the introduction,the full text divides four parts of the main contents are as follows:The first part is the general inspection of the allocation on burden of proof in medical dispute principles.This part is mainly defining the concept and the characteristics of the medical disputes,and expatiate litigation spine "burden of proof’ on the theory.The concept of medical disputes have been a variety of academic theory,including the most generalized,three broad and narrow definitions.This article about the medical dispute of the burden of proof,damages are limited to medical damage disputes,divided to the medical malpractice damage disputes and other medical tort damages disputes.Medical damage disputes are defined as the process of medical care due to negligence of medical personnel to patients with damage caused by personal injury compensation disputes.It discusses the competing responsibilities of the medical damages,introduced the concept of evolution and modern meaning of burden of proof and the allocation of an exception to the principle.- The application of burden of proof and the law carried out a more detailed analysis,is the core of the burden of proof,the substance of its results have an enormous impact on justice,so the burden of proof on the study of the distribution of burden of proof has become the most important theories.The second part is the rational analysis on the allocation of burden of proof in china’s medical dispute.This part mainly outlines the burden of proof in medical disputes and the status of the theory legislation.Judicial interpretation of the provisions of part of the burden of proof is reversed, patients with the establishment of the facts against the burden of proof,and medical institutions on the "medical act and the damage the result of a causal relationship between the non-existent and there is no medical fault,".In short, the need for a causal relationship is inverted the burden of proof and fault. Damages in a dispute of medical burden of proof in the implementation of a far-reaching significance,it standardized the order of medical management, increased the patients attacks and defense ability in the litigation and improve judicial efficiency and to reduce the cost of justice,it is to uphold the principles of fairness and justice and protection of the weak interest value of the law.The third part is the problem of China’s allocation on burden of proof in medical disputes.This part analyzes the default of China’s medical tort litigation burden of proof on the Law perspective and opened the inversion of medical litigation reform for prelude to the rules of evidence,but there are still some shortcomings in the legal basis for the theoretical foundation and concrete judicial practice.The analysis and understanding of these defects can improve our burden of proof of medical disputes distribution system and better protect the interests of patients. Part four is the improving of the allocation on burden of proof in medical disputes.The main part is to improve the allocation of the burden of proof in disputes,from the legislative and judicial practice sides At present, China’s current method of provisions of the distribution of the burden of proof in medical disputes is also too simple,based on the medical causal relationship between the specificity and the complexity of the legislation we should study the relevant institutions of abroad,such as Germany’s " prove apparently " the principle of Japan’s " presumption probably "principle,can be better for the medical dispute resolution service.The establishment of a neutral expert organizations,the establishment of the risk of capacitive principle,the establishment of medical liability insurance system,the compensation fund which is setting up on the principle of fairness are in helping to achieve the allocation of the burden of proof to ensure that real justice,these efforts are fundamental in order to prevent the occurrence of medical disputes and resolve medical disputes,building a harmonious relationship between the physician-patient services.

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