Study On The Distribution Of Burden Of Proof Of Medical Fault

In recent years, the medical disputes have increased day by day, the medical trouble have become acute, how to solve the medical disputes in a fair and reasonable has become an indisputable hot issues. Because the medical activities with professional and high complexity, the identification of medical fault has become the focus of the settlement of medical disputes, it also decides whether the patients can obtain the effective relief of the law, corresponding to the distribution of burden of proof of medical fault is the priority among priorities, it determines the success or failure of action. "Tort liability law" was officially implemented in 2010 July, it made the new rules for the identification of medical fault and the distribution of burden of proof. But these regulations have some defects, unable to meet the suit requirements. This article through the definition of medical fault to explore the correct method to define the medical fault. And from the influence factors the distribution of burden of proof of medical fault, to analysis it’s characteristics. Learn from the foreign advanced experiences, to perfect the system of burden of proof to ease, try to allocate the doctor-patient’s burden of proof and put forward the perfect suggestions of the supporting system, in order to build our scientific distribution of burden of proof of medical fault.In the paper, removing the introduction and conclusion section, it contains four parts:The first part is the identification of the medical fault. This part starts with the definition of medical fault, introduces the identification standard of medical fault, emphasizes the legal significance of identification of medical fault. And it points out that correct identification of medical fault have important significances to medical tort or breach of medical.The second part is the consideration factors of the distribution of burden of proof of medical fault. This part mainly introduces the general property of the distribution of burden of proof, and on this basis from the five aspects: the realization of the substantive law principle, the particularity of medical treatment industry, the ability of party of the burden of proof, the influence of obstruction of evidence and the development and cost of Medicine, to analysis the related factors of it. In a word, the distribution of burden of proof of medical fault is special.The third part is the practice and reference of the foreign medical fault on distribution of burden of proof of the relevant knowledge. This part describes the " the thing speaks for itself" in America, the apparent proof theory and the gross medical defect principle in Germany, the law of the principle of the presumption of medical fault in Japan, summarize the practical experience of these countries and has an enlightenment function to our system of burden of proof of medical fault. In these countries insist on the principle of distribution of burden of proof they have taken a different proof obligations buffer system, in order to make a rational distribution the burden of proof between doctors and patients.The fourth part is the improvement of burden of proof of medical fault. It is based on the previous parts, and put forward to improving the burden of proof of medical fault suggestions. In order to reduce the patient’s burden of proof, to alleviate the contradictions and to provide a theoretical basis to the medical disputes, to suggest that we should establish a system of burden of proof to ease, confirm the proof responsibility of both sides and consummate the supporting system, in order to balance the burden of proof ability of the parties and to build a harmonious relationship between the doctors and the patients.