A Study On The Allocation Of Burden Of Proof In The Liability Of Medical Damage Case

The burden of proof is the backbone of litigation, especially in the case of medicalmalpractice litigation.The burden of proof in medical malpractice case should be allocatedby means of equality of benefit of patient and hospital.Pursuant to The People s Republicof China Tort Law, burden of proof is allocated under framework of the classified legalelements that need some change.The rule of allocation of the burden of proof in medicaltort damage litigation is flexible-applied in many countries and areas.This paper dividedmedical practice into narrow medical practice and auxiliary medical practice,combined theresearch on oversea laws and legal experiences,provided some advice to improve heallocation of the burden of proof in medical malpractice litigation in China.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 mainresearch method.Chapter one discussed meaning,nature,characteristics in view of the the legalrelationship.According to the subject and content divided medical practices into narrowmedical practices and general medical practice.Chapter two introduces and comments the reasons, imputation principle and elementsfor the liability of medical malpractice,which based on different types of medical practices.Chapter three described the basic theory of allocation of burden of proof and ananalysis of extraterritorial theories.We briefly described China s theory and practice aboutthe allocation of burden of proof in medical malpractice litigation.Then based on differentmedical practices applicable to specific allocation rules.In the conclusion, allocation of the burden of proof is regulated both in entities andprocedures.