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The Research On Burden Distribution System Of Proof Of Medical Tort

Posted on:2015-07-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y J QinFull Text:PDF
GTID:1486304322965659Subject:Demography
Abstract/Summary:PDF Full Text Request
There is a growth trend in medical disputes cases in recent years. Doctor-patient relationship is a hot and also a difficult spot of society. It is a common occurrence that doctors are beaten, insulted and even killed. The reasons causing doctor-patient dispute are complicated, including economic factors, political factors, and social factors and so on. In the aspect of legal system which is an important tool to end disputes, the most important institutional arrangement of law is the burden of proof allocation system in resolving doctor-patient conflicts, alleviating doctor-patient strained relation, coordinating doctor-patient interests. The law adjusts the interest between doctor and patient through the burden of proof. In lawsuit, the burden of proof has the direct bearing on winning and losing, especially in medical cases it is directly related to the legal adjustment and regulation of doctor-patient relationship.The general rule of assignation of burden of proof not only can avoid one party's abuse of litigation but also can avoid the other party's abuse of the right of defense. Through medical dispute cases apply the general rule of assignation of burden of proof, it still cannot protect the parties'interests of the entity because of its professional and highly technical, as environmental pollution, patent dispute and cases of the objects thrown from the high hurt a person. During the burden of proof for medical tort litigation apply special rules, it causes patients'malicious action and defensive hospital treatment, being hypercorrect. In this case, the law need to redesign the medical tort burden distribution system, guide the behavior choice of doctor and patient in order that both doctor and patient make rational choice of litigation or non-litigation to settle dispute, from their own fundamental interests. As a specific micro system design, the medical tort burden distribution system is parallel to "the three top","active judiciary" and "big mediation" to reduce the burden of the court. The burden of proof allocation system affects the court decision for medical tort cases. The outcome of the judgment influents strategy selection of both hospital and patient in the process of dispute resolution. The logical structure of this paper is the burden of proof allocation system of medical disputes---the court decision----interests of patient and doctor----the behavior choice of doctor and patient---the number of court cases. It is of important theoretical significance and practical significance to research burden of proof allocation system of medical disputes, analyze its cause, perfect the rules of burden of proof distribution on legal system, properly handle the doctor-patient dispute and protect the interests of doctor and patient.This paper elaborates on distribution of evidential burden of medical tort from entitative, procedural and practical perspective, and put forward some suggestions of perfecting evidential burden.The main contents of this paper are as follows:The first chapter, legislative evolution and its reasons of medical tort's distribution of burden of proof. Medical tort's distribution of burden of proof is the logical starting point of this article, selectively analyzing the reasons for changes of distribution of evidential burden of medical tort. The reasons for changes of distribution of evidential burden of medical tort are complicated and the court decision is related to interests of doctor and patient and the game between doctor and patient leads to changes of distribution of evidential burden. Distribution of evidential burden of medical tort influent the court's judgment and the court's judgment also influent the number of court cases. The more the court cases are, the higher the judge's pressure. The pressure of judicial judgment asks for the change of distribution of evidential burden. In the background of reform of the judicial system, the change of burden of proof of medical tort takes place to reduce the pressure of the court. Therefore, the changes of burden of proof of medical tort timely adjust interests of doctor-patient and the court, and thus satisfy the interests of all parties.The second chapter, the entity rules perspective of distribution of evidential burden:fault and causality."Fault" and "causality" as the components of tort liability, it's difficult to proof in judicial practice of medical tort. In proof of "fault", distribution of proof of medical tort fault is closely related to the principle of responsibility that the law distributes the liability to hospital by principle of liability for fault and the liability to patient by principle of liability without fault. The medical tort causality is a difficulty that puzzles the academe and the law and the causality of distribution of proof is not involved in Tort Liability Law. There is a varied causation theory and applying responsibility of causation and responsibility within the scope of causality influent distribution of burden of proof.The third chapter, distribution of evidential burden of medical tort:the perspective of medical appraisal. The applicable rules of burden distribution of medical tort change with the former double-track phase, double-track phase and later double-track phase of medical appraisal. In practice, medical appraisal institutions are neutral, and medical appraisal conclusion makes up for the lack of professional knowledge of the judge and reduces the burden of proof of doctor and patient. However, it still needs to perfect the identification of medical system and definite distribution of evidential burden from the aspects of building expert auxiliary system, increasing transparency of medical appraisal and guaranteeing the neutrality, impartiality and authority of medical appraisal institutions.The forth chapter, practical perspective of distribution of evidential burden: doctor-patient dispute resolution mechanism. Doctor-patient dispute resolution mechanism divides into private relief and public relief. The way and cost of dispute resolution influents the choice of medical dispute resolution mechanism, mainly discussing the direct relation among distribution of proof, hospital and patient and the court from the aspects of court's cost of solving dispute, the party's lawsuit cost including lawsuit fees, time cost and other costs and cost of hospital including compensation, reputation and doctor's heart burden. The law needs consolidation and distribution of interests of all parties. Taking cost and the reality into consideration, the change of distribution of medical tort's evidential burden is a necessary choice to adjust the doctor-patient relationship. Practical operation effect of distribution of evidential burden he produce an effect on court's efficiency and the guidance of distribution of evidential burden on patients'choice of dispute resolution mechanism.The fifth chapter, perfection of distribution of medical tort's evidential burden. On entity rule, there is application of principle of liability for fault and perfection of the evidence system, introducing documentary evidence, physical evidence, expert conclusions and audio-visual materials in medical tort in detail; On judicial practice, it guarantees medical informed consent and perfects distribution of medical tort's evidential burden and introduces medical informed consent and the exercise of medical informed consent right to make up for the inadequacy of the burden of proof for completing the burden of proof. On procedure, the perfection of burden proof of medical tort includes refinement of the "condition" of "conditional single inversion" and the establishment of expert auxiliary system and evidence preservation system.
Keywords/Search Tags:medical tort, distribution of evidential burden, the liabilityprinciple, medical appraisal, institutional change
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