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Burden Of Proof In Medical Tort

Posted on:2011-11-27Degree:MasterType:Thesis
Country:ChinaCandidate:C GuoFull Text:PDF
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In recent years, medical malpractice lawsuits are rising. The contradictions between doctors and patients have become increasingly conspicuous. Serious contradictions and the risk of medical negligence have seriously affected the normal medical order and threatened the safety of doctors, and also, to some extent. affect social harmony and stability. While "defensive medicine" measures taken by doctors in order to avoid risks also eventually damage the interests of patients. In order to handle medical tort litigation fairly and equitably, through the burden of proof by balancing the parties ability to achieve legal equality. Supreme People's Court issued the explanation that: "Infringement actions caused by medical tort action, medical institutions, medical practices and the damage there is no causal relationship between the results and there is no burden of proof of medical mistakes." Under this provision, medical malpractice lawsuits carry out presumption of causation and faulty implement, and the inversion of burden of proof.This article is divided into three majority. The first part introduces the principles of the distribution of the burden of proof, clarify the burden of proof, general principles of allocation of the burden of proof and burden of proof of the difference. This is a solid theoretical basis on understanding of burden of proof.The inversion of burden of proof is based on the law expressly provided, which will normally have accrued to the plaintiff on the presence or absence of certain facts bear the burden of proof, the facts by the defendant on the presence or absence of a burden of proof, if the defendant can not have evidence shows that the fact that the plaintiff is presumed to favor the establishment of a distribution system the burden of proof. The inversion of burden of proof as an exception to the principle distribution of the burden of proof, which has differences on the content of proof, the legal consequences from the main general principles.The second part introduces applicable conditions of the practice of medical litigation carrying out inversion of burden of proof, and then elaborated the advantages and disadvantages of inversion of burden of proof.The inversion of burden of proof as a special form of allocation of the burden of proof, conditions include the following aspects: First, burden of proof must have a clear legal basis. Second, the subject of the plaintiff to prove there some kind of proof barrier. Third,it is based on the circumstances of the case, does the need to protect the interests of victims. Fourth, some before the defendant has to prove the existence of the possibility. Even though the inversion of burden of proof is a way of a strict liability, it is not inappropriate to impose the responsibility of the accused.Medical tort litigation carrying out the inversion of burden of proof plays an very important in the establishment of social order and deeply affects the behavior of members of each community choice. Because in an open, people increasingly frequent social interaction, regardless of whether the individual is willing, are likely to be involved in disputes with others, to become party to the proceedings. The arrangement of the litigation burden of proof to break the status of the parties was unequal situation, increase the risk of losing health care institutions take to alleviate the burden of proof by the patient against the pressure to balance the parties to testify, and a system to protect against patients by the legitimate rights and interests and avoid legal discrimination for the disadvantaged, effectively enhance the quality and efficiency of the trial, will also medical practices medical sector that has had a profound in. We should see the implementation burden of proof is conducive to the settlement of medical malpractice fairly and reasonably. And also it helps protect the lawful rights, interests of patients, improving hospitals management, service quality and judicial efficiency. It also can reduce suit cost.Though the inversion of burden of proof is conducive to protecting of vulnerable groups of patients benefit, the rules have a number of problems:First, the rigid rules of judicial interpretation of the law may lead to unfairness to health care institutions. We can conclude that the level of medical practices in the law is illegal, and only come up with conclusive evidence to prove the legality of acts. In addition, the burden of proof that the presumption implicit rule that doctors on the patient's condition is totally clear, no one else, such as doctors better understand disease conditions. High risk health behaviors. It focused on the performance of a double high-risk sex, such as the injection would have a pinhole; surgery can remove the tumor, but also cause trauma. For these medical practices, health behavior and the damage only if there is causal relationship between the results to identify whether there is fault liability act; then, almost all medical practices are illegal. Due to restrictions on scientific development, there are many unexplained medical problems.The second is to induce doctors to take "defensive" to damage the interests of patients and is not conducive to the smooth development of medicine. Medical industry is a high risk industry, the implementation of medical treatment to patients in the act, but also run a high risk. Some medical institutions of discrimination or exclusion of some easy home health care agencies disadvantage of patients. These patients would not get the most effective treatment. Which inhibits of exploration and innovation initiatively and ties the hands of medical practice, thus affects the development and progress of medical.Third, inaccurate judicial interpretation results in low legal threshold, which affected the application of law results. Judicial interpretation "by the medical institutions, medical practices and the damage there is no causal relationship between the results and there is no burden of proof of medical mistakes", but did not make clear evidence on the plaintiff.The third part of this essay states the burden of proof in medical malpractice litigation proposal. Legislative and legal application of the two levels of sound judicial interpretation. Legislation to take legal measures include thinning distribution of the burden of proof and determining medical malpractice case. The presumption of causation and fault, must set the necessary preconditions, appropriately increasing the "action threshold" to avoid the parties free to bring medical malpractice lawsuits, medical order to ensure smooth and efficient. Through medical jurisprudence system required to make up for lack of judicial interpretation, to avoid the law applicable to cause mechanical judge unjust verdict, to guarantee justice, enhancing people's legal awareness, raise the res judicata ruling.Medicine is a complex science, which can not do without exploration, research, practice, the law. Medicine should take full account of the doctors free behavior of choice, release the from a "defensive" bound, and play the glorious duty of doctors save lives. Their medical liability insurance system has a doctor of occupational risk transfer to the important role of social commitment, a doctor from the medical complex disputes were freed to concentrate on raising the professional standard.Fundamentally, the interests of both doctors and patients are consistent. Supreme Court's judicial interpretation of the provisions although there is not perfect, but on still meet its overall interests of the majority reflects the law's pursuit of fairness and justice, at the meantime, we should strengthen its direction to their Local areas are not suitable for improvement. The system can look forward to the parties to fully mobilize the patient burden of proof, to enable timely identification of the court case, in a timely manner fair and equitable treatment of medical tort litigation, to protect patients and health care institutions and their legitimate rights and interests of medical staff, doctors and patients to establish a harmonious relations, the real medical life-saving vocation to play, so as to maintain the medical order, protection of health security, promoting development of medical science, the law should be pursued to achieve a just, fair and effective value.
Keywords/Search Tags:Inversion of Burden of Proof, Distribution of the Burden of Proof, Burden of Proof
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