Dissertation > Excellent graduate degree dissertation topics show

On the Burden of Proof in Medical Tort Dispute

Author: LiangDong
Tutor: CheChuanBo
School: Jilin University
Course: Procedural Law
Keywords: Medical Tort Dispute Burden of Proof Allocation of the Burden of Proof Inversion of Burden of Proof
CLC: D925.1
Type: Master's thesis
Year: 2010
Downloads: 547
Quote: 3
Read: Download Dissertation

Abstract


With the increase of medical tort disputes and outbreak of doctor-patient conflicts, it attracts great focus by legal circles, medical circles and legal practices on how to solve medical tort disputes on a fair and reasonable basis. In the respective of procedure law research, it is significant on how to distribute prove burden of medical tort disputes. On the expectation of perfecting the current medical torts prove distribution system and balancing the interest of both doctors and patients, I have conducted analysis on the regulations about medical torts disputes and give some advices.In addition to the introduction sector and the conclusion sector, the article is divided into four chapters. The total word is around 30000.In the first chapter, there is an overview of medical tort dispute prove burden distribution. There are two parts in it, the first part is about the related concept while the second part related to some regulations.The medical tort disputes arise from the infringement by the medical conducts on the patient’s life, body and health. There are three theories about the prove burden distribution, which are conduct burden theory, result burden theory and multiple burden theory. I agree with the third on the point that the prove burden should be an association of conduct burden and result burden. The prove burden distribution is the key point of prove burden. In our country, the common legal practice adopt a theory under which the claiming side should bear the prove burden. In addition to the common practice, on the expectation of protecting some weak group in some specific circumstance, a means of prove burden inversion is also be adopted, which means the prove burden of complaint will be transferred to the defendant.In 2002, the forth clause of "regulations on civil dispute evidence issued by supreme court" regulates that "In the dispute of medical conducts, the medical association should prove that there isn’t any connection between the infringement and their medical conduct". Which means the prove burden inversion should be adopted in medical tort disputes. However, in the "Tort Law" issued in 2009, in which the medical infringement liability comprises a single chapter, the 54 clause in it states "the medical associations should take the compensation responsibility if their conducts make infringement on the health of patients". The "Tort Law" attracts great disputes from its second review since it adopts the fault principle.The second chapter focuses on the medical torts prove liability system on a worldwide basis.In this chapter, the author discussed in detail of the extra-territorial disputes on the burden of proof in medical tort distribution .The United States law adopts "facts fault principle", while the German law adopt "See that table" principle and Transformation Theory of Principles and the burden of proof. The Japanese law adopts "general presumption" principle. Finally, on the expectation of perfecting the regulations of medical torts prove liability distribution, the author conduct serious comparisons between the related regulations on a worldwide basis.The third chapter is the comment on the current situations of medical torts dispute prove burden system, which including two parts. The first part is the analysis of prove burden inversion while the second part comprised of some comments on "Tort Law".The adoption of prove burden inversion principles in medical torts disputed by "Evidence regulations" leads to many positive results. For example, it reduces the prove burden of the patients, protect the interest of the weak sides patients, enhance the quality of medical services and the ideas of the medical associations about preserving the medical evidence. In addition, it promotes the efficiency of the medical litigation and process to some extent, realized the litigation goal of justice. However, on the other hand, it also brings about some negative influence. For instance, it might push the medical associations in the embarrassing position of inability of proving, which may be prejudice to medical associations. In addition, the medical association may use "protecting methods" in curing to protect themselves. The above-mentioned shortcoming may hinder the development of medical career and the increase of "abuse of litigation" and "malice litigation".The "Tort Law" adopts the fault principle on a common basis while adopts fault presumption principles in some special cases. The adjustment has some reasonable basis and is appreciated by medical associations. However, there are some blemish in it and some problems with the codes itself. The "Tort Law" did not give enough protections over patient’s interest, which is contrary to the aim of law to protect the weak side’s interest and consistency of law.The fourth chapter is about the perfection of the medical tort dispute prove burden distribution system in China. It contains three parts, the first part is the perfection of medical torts dispute prove burden inversion system while the second part relates to the setting up of medical insurance system and the third part is introduction of ADR dispute resolution system.In this chapter, based on the researching, analysis, comparison of medical torts disputes on both a worldwide and internal basis, the author raised her own points: firstly, the burden proving inversion principle should be re-adopted and regulated in codes while the application of burden prove inversion principle should be restricted. Secondly, different prove liability distribution should be applied on different medical phases. Thirdly, on the aim of reducing the prove liability of medical associations, the proving standard should be turned down and reasonably distribution of causality which means the patients should bear the burden of proving the existence of "fact causality" while medical associations proving the non-existence of "legal causality". On the aim of balancing the interest of both medical associations and patients, minimizing the conflicts and keeping a peaceful relationship between the two parts, a reasonable proving burden distribution system and reasonable regulations are needed.Thus, the author has the following advices: firstly, the medical insurance system should be setup to minimize the high risks of medical profession careers. Secondly, the ADR dispute resolution measures such as reconciliation, people mediation, administrative adjudication, medical arbitration should be introduced in medical disputes, in order to resolve disputes smoothly and eliminate doctor-patient conflicts and reconstruct harmony doctor-patient relationship.

Related Dissertations

  1. A Research on the Claim Rights for Lessee’s Accessio Interests,D923
  2. Large amounts of property from unidentified sources Exploration,D924.392
  3. The Analysis of the System of Compensation for Divorce Damage,D923.9
  4. The Discussion of the Optimizing of the Assignment of Burden of Proof and the Rules of Offering Evidence,D925.3
  5. Citizen 's right to know Judicial Relief,D922.1
  6. Research on the Liability of Blood Transfusion Infection,D923
  7. The principle of no-fault liability of environmental rights infringement and reverse burden of proof,D922.6
  8. Huge amount of property from unidentified sources,D924.3
  9. The patient disputes Burden of Proof of Jurisprudence,D923
  10. Large amounts of property from unidentified sources identified problems and Measures,D924.3
  11. Stock market manipulation criminal regulation of behavior,D924.3
  12. Criminal Presumption,D925.2
  13. According to the system of administrative licensing,D922.1
  14. Crime of stock market manipulation,D924.3
  15. Analysis the Burden of Proof System in Disputes in Online Shopping,F724.6
  16. The Research on the Burden of Proof in Patent Litigation,D923.42
  17. Study on the Causation Presumption in Medical Tort,D923
  18. The Research on the Problems Arising from the Adjustment of Liquidated Damages,D923.6
  19. Research on Reducing the Burden of Proof of Legal Dasis for the Parties and System Conastruction,D925.2
  20. Proof of Criminal Defendants,D925.2
  21. Study of Evidence in Tax Administration Proceedings,D925.3

CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
© 2012 www.DissertationTopic.Net  Mobile