On The Reversal Of The Burden Of Proof In Medical Malpractice

In recent years, the acute and complex contradictions between patients and medical institutions become an indisputable fact in the medical and law circle. People from all sectors of society pay a close attention on building a comprehensive legal system for solving medical malpractices disputes. On September 1, 2002, the State Council promulgated "Regulations on Handling Medical malpractices", which, to some extent, played a normative role in the prevention and trial of medical malpractice in our country. However, the content of this Regulation, with strong administrative character, lagged behind people's expectation and brought lots of problems in practice. After drawing experiences from the practice of other countries, this paper probes into the inversion of the burden of proof in medical malpractice disputes from several aspects.The paper is divided into five chapters with 30 thousand words. The first chapter introduces the general theory of the burden of proof, and briefly introduces the allocation principles for burden of proof in common law system countries, continental legal system countries, as well as China. ChapterⅡintroduces basic theories and the necessity of applying the inversion of the burden of proof in medical malpractices disputes, and gets the conclusion that the substantive justice cannot be achieved by the common allocation principles of burden of proof. It's difficult for ordinary people to understand the professionalism in the medical malpractice lawsuits.In this chapter, the paper points out the nonequivalence of proof burden between patients and medical institutions, and deeply explains the necessity of applying the inversion of the burden of proof in medical malpractices disputes from the principle of equality. Finally, this chapter deeply analyses the application of the inversion of the burden of proof in medical malpractices. ChapterⅢfocuses on the judgments and utilization of the inversion of the burden of proof in medical malpractices. On the basis of detailed analysis of medical malpractice's composing elements, the paper makes a probing analysis on the subject element and the causality between medical activities and the damages. On the ground of the theories of other countries, especially the medical standard theory in Japan, the paper discusses the judging criteria and its influencing factors of medical institutions' negligent conducts. ChapterⅣstates exemption of compensation liability in medical malpractices through general defending grounds and special defending grounds. ChapterⅤexplains the defects of the inversion of the burden of proof in legislation and practice, such as defensive medical treatments and indiscriminate lawsuits, points out the issues in need of improvements in practice, and puts forward some suggestions aiming at the issues mentioned.