Study On The Causation Presumption In Medical Tort

Medical tort is one of the topical issues in recent years. Medical disputes become more and more, and the physician-patient relationship becomes harder and harder. If the physician-patient relationship can not be solved well, it will become an empty paper to build a harmonious relationship between doctors and patients. As the professional and complexity of medical tort, causation in medical tort with the mystery makes people much easier to be puzzled at it. In this case, the evidence of causation in the medical tort should be defined in "Tort Act". The causation evidence impacts the effective settlement of the medical disputes and the relaxation of physician-patient relationship. There is a big disagreement in the academic, especially in the medical academic, because of the shortcomings of the rules of causation presumption.In the legislative background of the "Tort Act", the study on the causation presumption in medical tort was given a more important practical significance, so this paper research on this theme.In addition to the introduction and conclusion, the full text is divided into three parts.The first part of "Validity analysis of causation presumption in medical tort", it begins with the series of data and examples to explain the conflict of physician-patient relationship and the specificity of medical tort, stating the imbalance of physician-patient relationship and complexity of causation in medical tort. Then, search for the in-depth theoretical basis of causation presumption in medical tort, that is to say the realization of corrective justice, the pursuit of effective value and the influence of legal policies. This paper demonstrates in a dual practical and theoretical point of view that the law should be inclined to protect the patient who is the relatively weaker side in physician-patient relationship, further proving the legitimacy of the causation presumption in medical tort.The second part of "Analysis on the specific application of the causation presumption in medical tort", firstly, this part analyzes and studies the characters and procedures of the causation presumption in medical tort. It states that the causation presumption is a law presumption in medical tort, impacting the distribution of evidence burden. Then, study on the burden of proof of the two sides that the physician and the patient, patients have to bear the burden of proof of facts about received medical treatment and damages, medical side can use the refute subject to prove the causation unexist. There must be a clear distinction between the basic fact and the.presumed fact in refuting. On the basis fact to refute just to make basic facts in the authenticity of an unknown state, but on the presumed fact that the causation presumption to refute is the certificate to prove in a higher level. Finally, the part analyzes problems which should pay attention to in the specific application of the causation presumption, that is, how to properly disposing of the relationship between causation and mistakes in medical tort and consider the degree of damage participation in the issue.The last part is concerned with "Investigation on legislative structionon of the causation presumption in medical tort in China". At first, this part describes the background and the shortcomings in the rules of causation presumption in medical tort. That is to say that the rule is described unclear, lack of substantive law and operability. Then,summarizing the special measures of solving medical issues in foreign countries, analyzing the main points against causation presumption, namely, that the causation presumption rules would contribute to a medical dispute, leading doctors, to make a defensive treatment which is inconsistent with the legislative "international practices", to prove the correctness and feasibility of legislative choices in medical causation presumption. This paper discuss that the legislative style of causation presumption in medical tort ruled directly would be more appropriate which is based on the characteristics of two legislative style,but the "likely" in Article 59 of the" Tort Act (Draft)" is too vague and should be made clearer.Although this paper has some personal opinions, the research of this issue is still at an initial stage. About the causation presumption in medical tort has to be further study.