| According to The Regulations relating to the Civil Evidence System by the superme court, medical institutions shall bear the burden of proof in a tort case of medical malpractice, which are at fault as construed in essence, and the principal of inversion of onus probandi is adopted.According to General Principles of the Civil Law, fault liability principle has been adopted in Chinese legislation, which means that tortfeasors, whether at fault or not, shall assume the tort liability only if it is stipulated by law. Fault liability principle shall be adopted in medical malpractice since no-fault liability is not stipulated by any provisions at all, and fault liability principle has already been adopted clearly for the firstly in the lately promulgated tort law. The above provisions by superme court shall be nullified for conflicting with the existing law, and the reasons lies in the following:1. Medical institutions is obligated to provid medical service whice focus on the course of treatment but not the result of treatment. Medical institutions and its staff shall abide by relating laws, regulations, or diagnosis and treatment standards in there work, but no promises as to any results of treatment shall be made.2. Both medical malpractice by medical institutions and uncontrollbal medical risks, may lead to harm caused by medical treatment. Risks exit during medical treatment, which is known as a fact. While, it's the patients benefit from medical treatment,,but not medical institutions which acting on the interests of the patient. Medical institutions shall not be required to assume tort liability based on the principle of fairness.3. Medical skill is limited by medical technoloy which is greatly based on experience. Medical institutions shall not bear the burden of proof in the case of uncontrollble or unknown medical problems exist, such as the patient catches unknown disease or dead of unknown reasons. If medical institutions bear unreasonable burden of proof, it will agaist the spirit of fairness and justice of the law.4. Under the present civil evidence system, the evidences provided by medical institutions proving that there're not at fault can be accepted by the court only if they are appraised of the cause-effect reationship and fault or no-fault by the appraisement institutions. Medical technical appraising or judicial appraising has become an important procedure. The distribution of burden of proof is start the whole procedure, while the principle of inversion of onus probandi bring massive presure to medical institutions.5. Patients, the victim of medical malpracice, the beneficiary at the same time, shall take the medical risks, and it is unfair to transfer patients' risks to medical institutions. Both the insterests of patients and the society shall be considered when formulating a law. On the basis of fairness, fault liablily principle shall be adopted instead of the principle of causality presumption or presumption of fault to promote Doctor-patient relationship.In general, in order to establish a sound medical service market, the principle of fault liability, which meas to allocate the burden of proof in the way of "he who is affirming must prove", shall be adopted instead of the principle of Inversion of Onus Probandi, where there will be less unnessesary lawsuits, and the legal rights and interests of both patients and medical institutions will be effectively protected. |
