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Study On Burden Of Proof In Medical Tort Litigation

Posted on:2011-10-03Degree:MasterType:Thesis
Country:ChinaCandidate:W Y DongFull Text:PDF
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Medical tort litigation involving medical malpractice distribution of the burden of proof ,the scope of the definition of the concept, allocation of the burden of proof and the principle of the burden of proof of civil law. In this paper, issues to be discussed on the basis of the above, also about how to improve the allocation of the burden of proof in medical tort litigation of "Tort Liability Act".Given the professionalism of the medical industry, medical infringement dispute are different from other civil disputes, so this paper for the medical malpractice and medical tort litigation are introduced.The first part of the chapter mainly discusses the meaning of medical malpractice, medical disputes and distinction between them, also explain the core features of medical malpractice with the composition of the subjective and objective elements. Medical tort lawsuit is one of the medical dispute resolutions, only to learn more about the causes of disputes in order to "remedy" to resolve conflicts fundamentally improve the quality and efficiency. Therefore, the second part of this chapter is an overview of the status of medical disputes. In order to introduce the causes and aggravate of medical disputes, and between doctors and patients for the study later in the medical, legal status of the process of laying the groundwork to help deeper understanding of the distribution of the burden of proof based on reason and. The third part of the dispute is mainly medical tort legal environment, citing the adjustment of our medical dispute has applied the laws and regulations, described the burden of proof of medical tort litigation assignment, "he who burden of proof" to "burden of proof" inversion of the historical process, a preliminary set of these laws, rules, regulations in the allocation of the burden of proof, the compensation criteria is inadequate, highlighting the development of new laws to improve the allocation of the burden of proof means a unified concept of health care and compensation for damage to the importance of standards.The second chapter is the burden of proof in medical tort litigation distribution, attributable to the principles of tort liability as the core issue is to study the distribution of burden of proof in tort litigation theory, so this chapter attributable to medical tort principles as the first part. Attribution theory, the principle of existence are: the principle of fault liability, the principle of presumption of fault liability, no-fault liability principle, the principle of fair and responsibility, has applied the principles of medical tort litigation primarily attributable to the principle of fault liability and the presumption of fault liability. In this paper, the second part of the chapter, the burden of proof in medical tort litigation, allocation adopted by China's current law allocation of the burden of proof are: "Who advocates, who burden of proof", "Burden of Proof", and not provided for in the law cases based on the principle of fairness by the discretion of the judge assigned.This chapter is a medical tort litigation burden of proof were discussed, including the "Supreme People's Court on the Civil Evidence provides that" medical tort action on the application of "Burden of Proof," the correct understanding of the need to continue to take our country at this stage "burden of proof back," the objective conditions, and the burden of proof related features. Provisions relating to evidence the implementation of the provisions of medical tort litigation, "Burden of Proof" means the hospital is not a party to bear all the burden of proof, "upside down" includes only areas: health behavior and the damage there is no causal relationship between the results and there is no medical fault. Patients also need to doctor the fact that the initial damage results bear the burden of proof. Apply equally to the medical tort litigation, "Burden of Proof," in a weak position to protect patients, from medical point of view, actually increased its burden of proof, so to some extent on the impact of medical practice. But this objection only emphasizes that "Burden of Proof" in the proceedings of the deficiencies, and thus favor of lifting the "burden of proof" point of view. Should adhere to the "burden of proof" principle, the Department adjusted its flaws, namely the implementation of a limited burden of proof. Environment is the primary legislative objective considerations, so the second part of this chapter of medical tort on the burden of proof generation and application of the external environment. Our current health care system, medical security system and the serious shortage of medical resources, the patients seek treatment only to face difficult and expensive problem, in case of medical tort litigation, medical knowledge, legal knowledge, evidence collection and time , financial, manpower, and medical institutions have a gap in the gap Considering these factors, as the settlement of disputes in the last line of defense, out of fairness and protection of vulnerable groups into account, it is necessary in the proceedings through the allocation of the burden of proof, the actual bias reset the balance of medical institutions. At the operational level, the production and custody of medical records by medical institutions to complete the case, if the waste burden of proof, even if the adoption of legislation to urge patients with medical inspection, copying medical records related material, but it is difficult to ensure complete medical staff the attitude of the medical records, after all, this is a production by the medical staff but by the patients for the production of medical records that exist in the treatment process fault evidence. Therefore, this paper supports in principle the continued application of the "burden of proof," its only make the appropriate adjustments and perfect can be. This chapter is the last part of burden of proof functions, in addition to balancing the parties to testify, the "Burden of Proof" also has a punitive function, It can catch a glimpse of a flexible application of burden of proof, or even clever to solve many practical the legal issues.Chapter IV focuses on medical tort litigation system to improve the distribution of the burden of proof. The beginning of this article topics is "Tort Liability Law (Draft)" when the second trial, and now, "Tort Law" has been completed, this year went into effect July 1. Consideration of comments from the boom time of the study on behalf of the enthusiasm for today, "Tort Liability Act" is a condensation of many people's wisdom and efforts of the law, legal process marks another leap in China. The new law expressed by the medical damage, ending the dispute in the medical malpractice and non-medical distinction between different laws and regulations and compensation standards for the chaos. On the principle of liability has long been debated and made new provisions only apply in the following three conditions the principle of presumption of fault liability: first, the violation of laws, administrative regulations, rules and other provisions relating to diagnostic and treatment practices; second, hidden or refused to provide medical information relating to the dispute; Third, forged, altered or destroyed medical records. Chu Ci three kinds of circumstances, apply the principle of fault liability, the corresponding medical tort litigation from the previous fits-all "burden of proof" into a supplementary application. Article that "Tort Liability Act" presumption of fault on the principle of liability for the three conditions, its role and significance is limited. In the even with the "burden of proof" in practice, patients are still very small chance of winning the case, turn to the principle of presumption of fault-driven, basic back, "he who proof" of the track, contrary to the law of equity principle. The third part of this chapter, considering the complexity of medical science, medical institutions in the medical, legal status in the dominant prerequisite, demonstration of implementing the reasons for the limited burden of proof and basis, and with reference to Germany on medical tort litigation, "the burden of proof inversion "of the application form, on how to apply our limited burden of proof the theoretical vision. Finally, on the perfection of medical dispute resolution mechanism, from the settlement, mediation, medical liability insurance for three common, and clear the channels for alternative dispute resolution, natural way to alleviate the pressure of justice.
Keywords/Search Tags:Medical Malpractice, Allocation of the Burden of proof, Tort Law
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