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A Study On The Allocation Of Burden Of Proof In Medical Negligence Lawsuit

Posted on:2012-01-25Degree:MasterType:Thesis
Country:ChinaCandidate:J YeFull Text:PDF
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The burden of proof in medical negligence lawsuit should be allocated by means of equitability of benefit of patient and hospital. According to this line , this paper mainly use comparative analysis, the normative analysis and empirical analysis method. This paper is consisted of three parts, i.e., the introduction, text and conclusion.Introduction described briefly current status of the title, and then explains the main research method.Chapter one discuss the cause of case of medical negligence lawsuit, thinking that it can both be breach of contract and infringement, besides, consumer protection laws can also be used. Then, this paper demonstrates the characteristics of medical treatment which are professional and evidence turn to hospital. On this basis, this paper thinks the method of allocation of burden of proof should be diversified.Chapter two introduces and comments the rules about allocation of burden of proof in Civil Law and Common Law. To be specific, there are"the facts speak for themselves negligence principles"in Common Law, the German law of"table, see proof of"theory, the Japanese law about the presumption. Then an analysis of similarities and differences between the three countries is made, for the purpose of improvement of related rules.Chapter three is briefly described China's legislation about the allocation of burden of proof in medical negligence lawsuit. And then points out that causal relationship and negligence's burden of proof must not be"the cart before the horse", besides, there are some shortcomings about related legislation.Chapter four treats the reformation and perfect about the rules in China from five points. Firstly, the normal rule is suitable for technology negligence. Secondly, the burden of proof's allocation of causal relationship can reduce standards of proof. Thirdly, products implements no-fault liability rule. Then, expansion and guarantee fully the patient's means and methods of collecting evidence. Finally, the ascension of consciousness and abilities of hospital about evidence is also a key towards medical negligence lawsuit.In the conclusion, a review and looking foreword is made, and points out that is a good method for improvement of law through the judicial practice, yet, regulation of the judge's discretion is necessary.
Keywords/Search Tags:medical negligence liability, the allocation of the burden of proof, interests balance
PDF Full Text Request
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