Analysis On The Burden Of Burden Of Proof In Medical Damage

The doctor-patient relationship is always a central issue that raises great social concern. Medical disputes are related to the common interests of both doctors and patients. If these disputes cannot be solved effectively, the conflicts between doctors and patients will become serious social problems. Law is a significant way to settle disputes. Thus in the field of legal system, the allocation rules of burden of proof for medical malpractice is one of the most important aspects to coordinate interests of both parties. In medical malpractice disputes, the allocation rules of burden of proof has a decisive role to determine whether the parties can reach their lawsuit claims,because medical practices have a complex, professional and peculiar particularity.Under the circumstance of deepening medical reformation, Tort Law of People`s Republic of China establishes a new regulation in the allocation rules of burden of proof for medical malpractice, which is that the ‘fault liability’ is the principle, ‘fault presumption’ is the exception. This new theory plays a positive role to alleviate the doctor-patient relationship as well as promote social harmony.However, Tort Law completely abandons ‘the reversion of burden of proof’, which not only enhances patients` burden of proof in practice, but also exacerbates the imbalance in the doctor-patient relationship.Based on the above actuality, this article is organized through the allocation rules of burden of proof to discuss the specific application in ‘the alleviation rules of burden of proof’ for medical malpractice with the relevant regulations in Tort Law.This article is divided into the following four parts:Firstly, the definition of ‘the alleviation rules of burden of proof’. In this part,the specific concept, the difference with ‘the reversion of burden of proof’,application scope and fundamental premises will be explained. Then understand this topic from the macro level.The second part is to review the historical process in the allocation rules of burden of proof for medical malpractice through three stages. Then analyze thedifferent comments in each stage and focus on the problems of the allocation rules of burden of proof in the application of Tort Law.The third part is to illustrate some foreign principles or regulations in the allocation rules of burden of proof for medical malpractice. Including‘Anscheinsbeweis’ principle of Germany, ‘Res Ipsa Loquitur’ principle under Anglo-American legal system and ‘Approximately presumption’ of Japan. Then summarize experiences and inspirations to Chinese medical malpractice cases through the comparison among these foreign principles.In the end, there are several specific construction proposals for ‘the alleviation rules of burden of proof’. The article still talk about the application of ‘the alleviation rules of burden of proof’ surrounding the four elements of medical malpractice. The emphasis is how the judges apply ‘the alleviation rules of burden of proof’ in the aspects of breach and causation.