On The Applying Of Spoliation Of Evidence In The Medical Actions For Damages

The spoliation of evidence in the civil litigation is that a party intentionally ornegligently obstructs the use of a piece of evidence by the opposing party which makes theopposing party unable to prove his allegation. There are a lot of spoliation of evidence inthe medical malpractice compensation proceedings. Especially, if the medical institutionswho control the vast majority of evidentiary material obstruct the evidence, the legitimateinterests of the disadvantaged patients will be damaged. However, Our theory about thespoliation of evidence is crude both in the theory and practice, because of the absence ofclear legislative and weak research. The thesis proposes to apply the theory of the spoliationof evidence to the medical malpractice compensation proceedings, after comparison offoreign legislative and judicial status about the spoliation of evidence.Firstly, the thesis analyzes the basic theory of the spoliation of evidence, and explicatesthe meaning and the applicable conditions of the spoliation of evidence. Secondly, the thesisdiscourses the application of the theory about spoliation of evidence in the medicalmalpractice compensation proceedings, and explicates the applicable conditions and legalconsequences.The whole thesis can be divided into four chapters:Firstly, the legislations and meaning of the spoliation of evidence. Because China’slegislation about the spoliation of evidence is crude, the thesis firstly compares thelegislative and judicial status of the civil law and common law, and then put forward themeaning of the spoliation of evidence.Secondly, the legal basis of theory of the spoliation of evidence. In order to support thepoint of view to apply the theory to the medical action for damages, the part will discussesthe legal basis of theory of the spoliation of evidence. The legal basis includes the legalprinciples and specific systems. And the legal principles include the principle of good faithand the principle of equality of arms in civil proceedings. The specific systems include theduty of cooperation and right of proof.Thirdly, the application of the theory of the spoliation of evidence in the medicalaction for damages. This part analyzes the feasibility and necessity to apply the theory ofthe spoliation of evidence to the medical action for damages, and analyzes elements of the spoliation of evidence. The elements include subjective, behavioral, results and the causalrelationship.Fourthly, the legal consequences of the spoliation of evidence in the medical action fordamages. This thesis analyzes the legal consequences thought two purposes of the system——relief and punishment. For relief, the court should presumes that the proposition ofpatients is true, long as the medical institutions obstruct the evidence. For punishment, thecourt can reduce the degree of proof, even shift the burden of proof, according to the viciousof obstructer’s subjective and the severity of the damage. At last, this thesis commentsbriefly the view that recognize spoliation of evidence as an independent tort in the USA.