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Medical malpractice Burden of Proof

Author: ZhouLi
Tutor: JinJianLi
School: Zhengzhou University
Course: Procedural Law
Keywords: Medical malpractice The burden of proof Causality Allocation
CLC: D925.13
Type: Master's thesis
Year: 2009
Downloads: 193
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Abstract

In recent years, medical malpractice has become one of the hot issues of concern of the whole society, medical malpractice lawsuits also showed a year-on-year growth trend. Today, medical malpractice and history very different, one occurrence frequency, compared to a few years ago into several times growth; vicious incident, the serious nature of the dispute, often due to some small misunderstanding medical staff of beatings, thwarted by the phenomenon of hospital public property, has seriously affected the normal hospital medical order and the safety of medical staff; dispute involves a very wide, there are medical reasons, for economic reasons, and other equity reasons, occurring the sectors of events can be said to have a dispute of every link on the medical and Fellows protection. Some problems with medical malpractice civil action in the Civil Procedure Law of China has yet to have specific provisions, scholars have not yet formed a unanimous opinion and understanding, especially in medical malpractice litigation, the burden of proof is a lot of controversy. In accordance with the general rules of civil proceedings the burden of proof, \compensation. However, due to the strong knowledge of medical activities, professional and technical requirements of the patients and their families to their ability to get evidence of these proceedings is unrealistic and unfair. December 2001 Supreme People's Court issued a \there is no causal relationship and there is no medical mistakes burden of proof \However, one size fits all \\Which, it is undeniable also inevitable there will be some people abuse the right to litigate rather malicious litigation, even vexatious, importune, not only caused great waste of judicial resources, human and material resources of the cost of medical institutions, so that the hospital and medical staff fatigue in due to a variety of medical lawsuits. The inversion of the burden of proof also affect the enthusiasm of the medical staff, especially the exploration of some of the complex problems now appear negative defensive treatment, many doctors are prone to avoid the risk of self-defense reaction, no longer selected patients active treatment programs, to some extent affected the development and advancement of medical science. The problem of medical malpractice litigation, the burden of proof requirements exist, the author of Germany, Japan, the United States and other countries on the burden of proof in medical malpractice cases assigned advanced theoretical analysis, feasibility studies, trying to find a rule compatible with China's national conditions and to solve our current problems. Medical indemnity dispute in the United States, it is not entirely applicable burden of proof proof rules, based on the circumstances of the case, the judge decided that the allocation of the burden of proof, since most of the states in the United States use of the fact itself shows fault \German medical indemnity dispute, the burden of proof inverted require two premises: First, to be a major clinics fault exists, that is clearly in violation of the norms recognized by the medical community clinics negligence; clinics that negligence must have happened enough to cause the nature of the injury. Germany practiced medical malpractice proceedings, therefore, to limit the burden of proof inverted current health behavior infringement dispute fully applicable to the burden of proof burden of proof is different. In Japan's civil action, the burden of proof allocation provisions of the parties in probably presumed this principle is the prerequisite for medical compensation proceedings, judicial practice is based on this principle as both doctors and patients the burden of proof allocated guiding principles. Therefore, Japan's judicial practice, medical damages Dispute proceedings, the burden of proof of the principle of the allocation of responsibilities and not, as the burden of proof in our country upside down. Looking developed countries, the the medical tort burden of proof, the general principles can be seen by the suffering party (plaintiff) to prove that the doctor (defendant) presence of medical negligence, a causal link between the damage as well as both. National courts with some of the rules to reduce the the suffering party the burden of proof, and to strengthen protection for the victims. However, due to the high risk and efficacy of medical uncertainty, countries are selectively applied to medical tort Reversal of the burden of proof. The reality of medical malpractice, medical malpractice is still more uneven level of medical technology and patient disputes negotiation to resolve the difficult situation of \The destruction of the principle of fairness, the allocation of the burden of proof should be diversified. Reversal of the burden of proof in medical litigation burden of proof play conversion effect denied the role of the judge's free evaluation of evidence, because the burden of proof is applicable in the case of judges in accordance with the free evaluation of evidence can not treat the authenticity of the alleged facts to make judgments . Therefore, the burden of proof in our medical tort litigation should not be used across the board upside down enthusiasm to curb medical exploration should be noted that the special circumstances of the medical, diversifying the allocation of the burden of proof, according to different situations for different principles and theories , the implementation of a fair and reasonable allocation. Infringement litigation caused by general medical practices should be original defendant bears the burden of its claims, and to determine the authenticity of the source of evidence by the judge. If both sides can not proof or not entirely the burden of proof, the respective proportion bear losing responsibility should not be the burden of proof. But rather in major clinics negligence cases, you can learn from the approach of the German judicial practice, the purposes of limitation, strict burden of proof upside down. In short, the burden of proof applicable in medical malpractice should be cautious, non-special circumstances, must not hastily. Reasonable allocation of the burden of proof in medical tort litigation, the ultimate purpose or in order to balance the ability of both doctors and patients of proof to achieve the fairness of the proceedings, to achieve the equal protection of the medical side and the risk of side. But medical malpractice reform can not be accomplished overnight proof of the allocation of responsibilities, it's perfect also need scientific construction of other related systems, such as: medical damages the perfection of the legislation, the establishment of a scientific identification system, built from a wide range of dispute resolution, the establishment of the medical malpractice insurance system and so on. In this paper, the author only superficial recommendations, in order to be able to provide some reference for our future medical legislation.

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