Presumptive-fault Of Medical Malpractice In China

In medical tort lawsuit, the evidence asymmetry between doctors and patients is obvious. If theproblem is ignored, and no relief is given to the patients whose ability to prove is weak, the patients win thecase seems remote. So most countries take some ways to relief the patients, fault presumption is introducedin China. Fault presumption in medical damage is that in the medical tort suit, according the law the courtpresumes the medical establishment has fault, the medical establishment provides evidence proving that heisn’t at fault. In the process of the fault presumption, the problem in the distribution of the burden of proofbetween doctors and patients is important for the solution of the medical disputes. In the legislativebackground of the “Tort Act”, the study on the fault presumption in medical tort was given a moreimportant practical significance, so this Paper research on this theme.In addition to the introduction and conclusion, the full text is divided into five parts.The first part of “The basic content of fault presumption in medical damage”, it begins with themeaning of fault presumption, which is a rule for presuming the offender has fault because the victim tosuffer damage has some connection with the offender’s behavior or the offender’s stuff, and the offenderprovides evidence proving that he doesn’t have fault. Besides, this paper defined the essence of faultpresumption in medical damage; it is a proof technique of asserting the medical fault. Then, this partanalyses the justness foundation of fault presumption in medical tort, it contains the realistic foundation andtheoretical foundation.The second part of “The relations between the fault presumption and burden of proof”, firstly, this partintroduces the basic concept of the burden of proof and the general theory of distribution of burden of proof.Then, this part analyses the relations between the fault presumption in medical damage and burden of proof.The fault presumption is a special rule to distribute the burden of proof, distributing the burden of proof is abasic instrument to presume fault.The third part of “The establishment of presumptive-fault rule in China”, firstly, this part interprets thebasic content of presumptive-fault of “Several Regulations about the Civil Action Evidence”. It is acomplete fault presumption; inversion of burden of proof is applied in medical tort. Then, this partinterprets the basic content of presumptive-fault of “Tort Law”. The presumptive-fault can be rebutted, and it is a limited fault presumption.The fourth part of “Analysis on the burden of proof of presumptive-fault in medical damage of ‘TortLaw’”. This part analyses the distribution of burden of proof between doctors and patients. The patientsshould burden the duty to collect proofs of the constitutive elements except fault and the foundational factswhich are regulated by article58of “Tort Law”. The medical institution can prove the foundational factsdon’t exist; presumptive-fault can’t be applied when the facts are in the state that whether they are true orfalse is not clear. The medical institution also can prove that he doesn’t have fault. Fault presumption can’tbe applied when there are plenty of evidences to convince the judge.The fifth part of “Consideration of the presumptive-fault of “Tort Law”. This part is from the burdenof proof perspective, examines and reflects on our present law. There are many problems in the process ofthe patients’ testification. The logical antinomy of the article58of “Tort Law” and the there situations ofthis article are the reason for the patients quote difficultly. Under the framework of “Tort Law”, thedistribution of burden of proof is not reasonable, it will also undermine the facts, the phenomenon ofinundant suits and “Defensive medical” is hard to deter.