Study On Allocation Of The Burden Of Proof In Medical Malpractice Case

Allocation of the burden of proof is critical to civil litigation. Medical tort damage is a special type of torts.Although the Legal relationship between doctors and patients is equal,but for the majority of medical information and knowledge is acquired by doctors,so its unfair and unjustice to ask the patients to prove all the legal requirements.So the rule of allocation of the burden of proof in medical tort damage litigation is flexible-applied in many countries and areas,some reduce the burden of proof and some inverse .For many years , the related rule of allocation of the burden of proof is stipulated in judicial interpretation in China .The People's Republic of China Tort Law officially came into effective in July 1,2010,the 7th chapter is about medical liability ,which explictly stipulates the liability caused by medical malpractices. The fifty-forth provison said if the patients get damages because of medical negligence during the medical treatment ,the medical institution takes the responsibility.From this provison we know that principle of fault liability is applied in medical litigation,accordingly, the rule of allocation of the burden of proof should be changed .This paper divided medical practice into typical medical practice and non-typical medical practice,combined the research on oversea laws and legal experiences,provided some advices to improve the allocation of the burden of proof in medical damage litigation in China.