The Study On Allotting The Burden Of Proof In Medical Dispute

Medical disputes have become a hot issue in the society nowadays. The distribution of obligation of proof not only impacts the proceeding, but impacts the behavior and benefits of both doctors and patients in the medical procedure. With the enacting of the law of tort in 2009, the question of burden of proof in medical disputes has been put into a new climax. With the progress of the construction of rule of law in our country, as well as the rise of patient's ideas of law and rights, the medical disputes have become a common phenomenon, the number of medical dispute is increasing in China. So how to distribute the obligation of proof in medical disputes reasonably, and to counterpoise the interests of both doctors and patients, and to improve the physician-patient relationship, and to achieve procedural and substantive justice, has become an important problem. This article which studies the question of obligation of proof, has some theoretical and practical significance.Except introduction and conclusion, this paper is divided into four parts:Part one discusses the basic problem about medical disputes. It mainly defines related concepts and legal character of medical disputes, and analyse the conditions and causes of the nervous physician-patient relationship. In this article, the study the obligation of proof in medical disputes only be limited to medical damage disputes which refer to compensation for the damages due to negligence of medical personnel to patients in the process of medical care.In the part two, based on the features of medical disputes, it illuminates the related theories of the obligation of proof, including the concept of the obligation of proof, the theory of the distribution of burden of proof, and the factors affecting the distribution of the obligation of proof in medical disputes. The part three makes a retrospective study of the history of the distribution of burden of proof after the foundation of New China. It generalizes the problem of obligation of proof in the process of three phases according to the reform of legislation, analyse and evaluate the conditions of legislation on the distribution of the obligation of proof, and propose some of my opinions.In part four, It provide some assumptions on how to perfect the distribution of the obligation of proof in our country, through studying the relevant legislation abroad, such as Res Ipsa Loquitur in America,"Prove apparently"in Germany, and"Probably presumption principle"in Japan. The main part is to improve distribution of the obligation of proof in medical disputes from the legislative and judicial practice sides. Due to the peculiarity of medical behavior and complexity of causality, we should distribute the obligation of proof in legislation rationally, to establish a neutral authenticate organizations, to establish a compulsive system on the assurance of medical obligation and medical compensation funding, this is to ensure the distribution the obligation of proof reasonably, and realizing of substantial justice, settlement of medical disputes, and to build a harmonious relationship between the physician-patient.