Theory Of Medical Tort Burden Distribution

Burden of proof is the backbone of litigation; and allocation of burden of proof is the core. It’s said that "Court is to fight evidence", thus, It is the distribution of burden of proof that decide the result of the medical tort litigation. The allocation of the burden of proof is used to be an important system of the civil law. Untill nowadays the exploration on this issue is still the focus of the theory sector’s argument, However, they have the same item that is to achieve the justice of all cases by improving the allocation of the burden of proof.Alongwith the advancement of legal construction, the consciousness of people is improving gradually. The conflicts between doctor and patient are increasing obviously. The number of medical lawsuits increase sharply. However, for a long time, there is no specific provision about the allocation of the burden of proof in medical tort litigation, it is treated as the same as the general infringement, applying the general rule of the burden of proof. In view of the specificity of the medical profession, it is more complicated to find the causal relationship between medical acts and the damage results. With more and more patients’ losing in the lawsuits, the fairness of the traditional allocation of the burden of proof was questioned strongly by the society. Since2002, the Supreme People’s Court promulgated the "Evidence On The Civil Procedure", which provided the burden of proof reversed that reducing the burden of proof of the patient, however, causing the minus effect.The defensive medical treatment of the doctor and the overuse of litigation by the patients are flooding, and the conflict between doctor and patient are deepen. In2009, the "Tort Liability Law" brought a new change to the allocation of the burden of proof in the medical tort litigation. There is no doubt that the study of the allocation of the burden of proof in the medical tort litigation is beneficial to promote the justice of both the procedure and the substantive, to balance the interests of both doctors and patients and to improve the physician-patient relationship, which will all be contributed to the harmony of the society.The paper has six chapters toallyIntroduction:Put the issue of the study forward and recommend its background. Chapter one:The definition of the allocation of the burden of proof and the allocation of the burden of proof in medical tort litigation. Introdction to the allocation of the burden of proof theory and its development status.Outlining the of the allocation of the burden of proof on the base of its characteristics.Chapter two:Introduce and analyze some special rules of the allocation of the burden of proof in medical tort litigation in some representative countries of the civil law system and the common law system.Chapter three:Review the development of the allocation of the burden of proof in medical tort litigation to evaluate their social influence in different stages. Pointing out the progressive significance and defects of the allocation of the burden of proof provided in the "Tort Liability Law".Chapter four: Suggestions to improve the allocation of the burden of proof in medical tort litigation. Such as introducing the easy system of the burden of proof, to make the allocation of the burden of proof in medical tort litigation diversity; balancing their proof abilities by protecting the informed-consent rights of patients and improving identification system, achieving the equilibrium of the allocation of the burden of proof finally.Conclusion: To sunmmarize the full text.