Font Size: a A A

Study On The Allocation Of The Burden Of Proof In Medical Damage

Posted on:2015-03-29Degree:MasterType:Thesis
Country:ChinaCandidate:F LiangFull Text:PDF
Abstract/Summary:PDF Full Text Request
In recent years, the doctor-patient disputes and "medical alarm" phenomenon occurs frequently, and the medical damages responsibility is the most main and typical one kind of doctor-patient dispute. How to deal with such cases is to reconcile the doctor-patient relationship, the key to maintaining social harmony, and the burden of proof allocation is the key to properly handle such cases, because it’s about the Lawsuit is won or lost, is the "backbone of litigation". In the medical dispute lawsuit, on the one hand, as a result of professional medical knowledge, Medical institution and its staff have medical information far more than parties, with patients in a vulnerable position, and "unequal weapons" phenomenon exists in the proof, The lawsuit benefit needs the law to give special protection; Medical behavior itself has the characteristics of damaging, high-risk and uncertainties, law on the rights and obligations defined relationship with the development of medical industry, and ultimately affect the overall interest of patients. How to do better coordination and balance in these two areas, states and regions has taken a different approach, but in general is the burden of proof allocation of medical injury made flexibility Settings, the easing burden of proof or the burden of proof conversion, the burden of proof allocation for medical damage is the inversion of the burden of proof in China.The tort liability act has been implemented in China in 2010, with the provisions Chapter VII of the entire chapter on medical damage liability as a kind of special tort liability. In this Chapter, Article 54 specified medical treatment fault behavior in patients with damage; the medical institution shall be liable for compensation. Thus it can be seen that the medical damages responsibility imputation principle is the principle of fault liability in China. Accordingly, distribution of burden of proof is applicable for medical damage is the distribution of the general rules. Although Article 58 provides for three legal types of fault presumption, but this is not a kind of burden of proof allocation rules specified, but to the provisions of the legal situations of fault presumption. Therefore, from the legislative point of view, China’s distribution of the burden of proof for medical damage single and also slightly single blurred. First, the author of this article analyzes the constituent elements of medical damage liability and imputation principle, and then combined with new ideas in China’s academics and foreign legislative cases comparison and evaluation, burden of Proof for medical damages were focused on research. For the perfection of burden of proof allocation system of the medical damage put forward some ideas.This Article consists of introduction, text and epilogue three parts, in which the body is divided into four chapters.The first chapter, first of all, summarizes the concept of medical liability for damage, constitutive requirements and principles of imputation. On this basis, then, for the allocation of the burden of proof has been studied. Causality is an emphasis and difficulty of medical injury cases, this paper argues that the causal relationship shall adopt diversified distribution rules of distribution of evidential burden. That is generally applicable "who advocate who proof", special circumstances apply to easing the burden of proof.The second chapter analyzes the distribution of burden of proof for medical damage in history. Our country has experienced from "who advocate, who proof" to "double unconditional onus probandi inversion" to "who advocate, who proof" and "double conditional onus probandi inversion" such an evolution process in the burden of proof allocation of medical damage.The third chapter studies the distribution of burden of proof with a comparative analysis of foreign legislative cases and the theory. Focus on Anglo-American countries "Res ipsa loquitur" principle, Germany’s "anscheinsbeweis" theory and onus probandi conversion of major medical malpractice cases and Japan’s "presumption roughly" theory.The fourth chapter puts forward the idea of perfecting our country’s the burden of proof allocation system of medical damage. The adoption of the burden of proof allocation rules should be able to better protect the interests of both doctors and patients, ease the doctor-patient relationship, and eliminate the doctor-patient contradiction. Should not only considering the existence of objective reasons, reduce the patient’s burden of proof, also need to prevent the defensive medical treatment and the phenomenon of patients abuse complaints. Therefore, different allocation rules should apply under different circumstances.
Keywords/Search Tags:Medical Tort, Medical Appraisal, Distribution of Proof Burden
PDF Full Text Request
Related items