Of Proving Fault Allocation Of Responsibilities For Research, Medical Tort Litigation

Medical injury tort litigation is the current social hot issue, while its core is the medical treatment fault and the proof of medical treatment fault of proof. But because the medical behaviors are professional, particular and complex, the consensus for the burden of proof in the medical injury tort litigation has not been formed both in theory and in the judicial practice. On July 1st,2010, the implement Liability for Tort offers more chances to solve this difficulty. This paper attempts to explore it from the following parts:The first part is a summarization of medical treatment fault and medical tort litigation. The demarcation of medical treatment fault has not come to a consensus neither in theory nor in practice, so the demarcation is the first problem to be solved in this paper. Through analyzing medical treatment fault analysis and combining the characteristics of medical behaviors, it is concluded what is the concept of medical treatment fault which plays a key role in medical tort litigation. Moreover, this paper expounds its point of view through elaboration and analysis of the burden of proof.In the second part, through the observation of the comparative method, it lists different burden of proof of fault in medical tort litigation in different countries such as the United States, Germany, and Japan. Thus, the contrast and analysis of these provides the reference to the allocation of the burden of proof of fault in medical tort litigation in China.In the third part, this paper expounds the evolution process of allocation of the burden of proof of fault in medical injury tort litigation and then quotes and comments various cases one by one. The lightspot among these is the newly-published Liability for Tort. This paper elaborates why the liability for fault can be applied in the medical injury tort litigation, affirms the conditional inversion of the burden of proof of fault in Liability for Tort, discusses three application circumstances of presumption of liability for fault, and then elicits the rationality of the burden of proof of fault. And this is a big improvement compared with the previous studies. However, to some extent, the proof of fault of patients'is increased. To solve this problem, I give some my own suggestions.