Study Of The Burden Of Proof Of Medical Damage Lawsuit

With the development of the society and the improvement of people's sense of litigation, the cases of medical malpractice have been increased dramatically in recent years and the medical litigation has aroused wide attention in nowadays society. In such cases, the evidence is the vital element, but it is so difficult for the patients to obtain the relevant evidence because of the unequal status of the hospitals and the patients. Then, how to distribute the burden of proof fairly and balance the two parties' benefits has been an important question for the field of law in many countries. So the article focuses on making some research on the distribution of the burden of proof in medical issues.The author firstly introduces some basic theories of medical malpractice and the burden of proof in the first chapter. The second part of this chapter introduces the important doctrines of two legal systems on the distribution of burden of proof. The article analyses the characteristics of the medical treatment, such as professionalism, non-determinacy and risks. All these reasons give rise to the unequal statues of the two parties in such cases. So there is a need to convert the burden of proof in order to balance the rights of the hospitals and the patients. In the next chapter, the author elaborates on the theory, conversion of the burden of proof, as so as the application in the judicial practice of medical issues. Then, the article introduces several theories of some developed countries adopt in order to balance the division of burden of proof in the medical cases in the following part After that, the author makes comparative study on the practice on the other counties and the conversion of burden of proof in our country in order to get some advice on the improvement of the new rule. The last part of this article focuses on the application of the conversion in nowadays society. It gives details on what kind of burden of proof the two parties should bear respectively according to the new rule. Then the following part put forward the assumption: our country should make more research on the burden of proof in medical issues from the aspects of theory and practice. Mean wile, with the application of the conversion of the burden of proof in medical issues, the insurance against medical malpractice are being perfected.