Burden Of Proof In Medical Disputes

In recent years, the medical dispute has become one of the hot spots which concern the whole society, and the medical dispute cases also showed year-on-year growth trend. Nowadays medical disputes have been different from the historical: First, the arising of disputes are high-frequency, comparing with a few years ago,nowadays disputes have been a few times into growth; Second, there are more malignant incidents, the nature of the disputes are serious, the phenomenon of blowing medical personnel and smash hospitals' public property often occurring only due to some very small misunderstandings, which have seriously affected the normal hospital medical order and the safety of medical personnel; Third, dispute covers a very wide range, there are medical reasons, economic reasons and other rights and interests of the reasons,and the taches of occurrence are various,it can be said that every medical and hospital aspects of security incidents have disputes. However, China's Civil Procedural Law hasn't had clear provisions to the civil procedure of medical disputes. The academia has not yet formed consensus understanding, especially in the issue of burden of proof of the medical dispute proceedings has a lot of controversy.According to the burden of proof in civil proceedings' general rule, that is, "Who claims ,whom the burden of proof" .If the family members of patients or patients who can't prove that the damage caused by the errors of medical units by evidence, will lose the due compensation. However, due to the medical activities' strong knowledge, professionalism and technical, and requiring patients and their families in their own ability to obtain evidence of these proceedings is unrealistic and unfair. So in December 2001 the Supreme People's Court promulgated the "provisions on Civil Procedure evidence" .It provided that "due to medical tort litigation arising from medical activities,the medical institutions have the burden of proof to prove that the medical treatment and the damage results' causal relationship does not exist and there is no medical mistakes. "That is expressly provided that the causal relationship and the fault in the medical tort litigation implement the inversion of burden of proof. However, the size-fits-all "burden of proof inversion" in practice brought many difficulties and disadvantages. There were a lot of errors about its understanding, such as: the burden of proof inversion significantly reduced the "threshold" of the patients suing the hospital, so that patients from the "vulnerable" to a "strong"in the medical dispute, the patient could easily become a lawsuit, and the medical litigation increased sharply inevitably. Among these, undeniable and inevitably there would be some people abuse the right of litigation to realize malicious proceedings, and even vexatious, importuning, which not only caused a great waste of judicial resources, but also spent resources of medical institutions, made the hospitals and medical personnel fatigue to deal with all sorts of medical lawsuits. At the same time inversion of the burden of proof also affected the enthusiasm of the medical staff, especially the exploration for some complex problems, and now there have been negative and defensive way of treatment. Easily,many doctors would avoid risks and prone to self-defense response, no longer chose the active treatment program to patients, to some extent ,which affected the development and progress of medicine.Aiming at the questions which exist in our medical dispute litigation provisions on burden of proof, the author analyzed the advanced theory of Germany and Japan, the United States and other countries in medical dispute cases in the distribution of the burden of proof, and attempted to find a rule which adapt to the conditions of our country and can solve the current problems. United States disputes of the medical damages, the inversion of burden of proof are not fully applicable, that judges decided the allocation of the burden of proof based on cases. Since the majority of states use the "The fact itself says the fault" principle to ease the patient's burden of proof. In Germany for damages of medical disputes, the inversion of burden of proof must be on two premises: First, there must exist a major fault of the diagnosis and treat, which is a clearly violate the universally recognized norms of the medical profession ; Second, the treatment negligence must be serious enough to cause the injury fault occurred. Thus, the German implemented a restriction of the burden of proof in medical dispute litigations, which is different from China's existing medical treatment as long as it is caused by the infringement dispute on the inversion of burden of proof is fully applicable. Civil Procedure in Japan, the parties of the allocation of the burden of proof is based on the principle of presumption. In the medical dispute proceedings for damages, the judicial practice make this principle as a guiding principle about physician-patient distribution of the burden of proof .Therefore in Japanese justice area, medical disputes over damages proceedings, the principle of burden of proof's distribution is not like our country's inversion of burden of proof.Making a comprehensive view at the burden of proof of medical tort in developed countries, we can see that the general principles are that the disease (the plaintiff) responding to prove the doctor (the defendant) exists medical negligence, the damage done to their own as well as the causal link between the two. At the same time, the rules adopted by national courts to alleviate the suffering from the burden of proof in order to strengthen the protection of the victim. However, due to the medical high-risk and therapeutic uncertainty, these countries have selectively applied the inversion of burden of proof in medical tort cases.in allusion to the realistic problems in our medical disputes, that is, medical disputes are still excessive,the levels of medical technology are ragged, and the doctor-patient are difficult to negotiate to resolve problems and so on, China's "one size fits all" application of the inversion of burden of proof is actually the destruction of the principle of fairness, and the allocation of the burden of proof should be diversified. The effect of the inversion of burden of proof in medical litigation played obliterated the judges' role of free evaluation to evidence, because the burden of proof is only applicable under a free evaluation of evidence in accordance with the judges can not deal with the authenticity of evidence. Therefore, our medical tort litigation should not make the "one size fits all" inversion of the burden of proof prevent the medical exploration enthusiasm. The special circumstances of medicine should be noted,and the allocation of the burden of proof on the implementation should be varied.According to different circumstances apply to different principles and theories and play a just and reasonable distribution. General medical tort litigation arising out of general medical acts should require the plaintiff and the defendant shared the burden of proof according to their claims,and then the judge determines based on the authenticity of the source of evidence. If the parties can not quote or can not quote fully, each of them should bear the lose responsibility according to their proportion of what they can not prove. But only in the case of significant medical negligence, we can learn German judicial practice,who practices limited and strict burden of proof. In short, the application of burden of proof in the medical dispute should be cautious, and non-exceptional circumstances, must not rashly use.The reasonable distribution to the burden of proof in medical tort cases, which of the ultimate goal is to balance the ability of the parties' burden of proof to achieve fair proceedings, and realize the equal protection to the patients and the medical side. However, the allocation reform of the burden of proof in medical disputes can not be achieved overnight, it's consummation need other related systems' construction, such as: the perfection of medical damages legislation, the establishment of a scientific appraisal system, a wide range of dispute resolution construction, the establishment of medical insurance system and so on. In the text I just proposed shallow suggestions with a view to provide some reference to the future of China's medical legislation.