The Burden Of Proof Distribution About Medical Negligence

Undoubtedly,medical negligence is the core requirement for the establishment of medical damage infringement liability,and also is the focus of disputes between parties in medical litigation disputes.The “Regulations of Evidence in Civil Litigation” have inverted evidential burden on the medical negligence requirements,the doctor proved that he had no fault.But this method of distribution of the burden of proof has intensified the contradiction between the doctors and the patients.It is not conducive to building a harmonious doctor-patient relationship.“The Tort Law of PRC” has changed the distribution of the burden of proof of “Regulations of Evidence in Civil Litigation”.Articles 55,57 and 58 of “The Tort Law of PRC” stipulate medical negligence.Article 55 stipulates the violation of explain and obtain consent obligations,Article 57 stipulates the violation of diagnosis and treatment obligations,and Article 58 stipulates that medical negligence is presumed in three situations.According to the above stipulates,It is obvious that the plaintiff bears the burden of proof for the negligent elements.Although “The Tort Law of PRC” reaffirmed that the negligent elements were proved by the infringer.it cannot establish the facts that the parties should prove in the lawsuit.In specific medical lawsuit,not all the main facts are proved by the plaintiff.The question is what kind of main facts the parties should prove in the specific litigation process.In December 2017,the Supreme People's Court issued the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Law in Case of Liability for Medical Damage(hereinafter referred to as the Interpretation),which generally continues the Regulations of “ The Tort Law of PRC”.The plaintiff bears the burden of proof of the elements of negligence,and it detailed stipulates the burden of proof of the elements of medical negligence.Articles 5,16,and 6 of the Interpretation respectively clarify the Articles 55,57 and 58 of “The Tort Law of PRC”.The Interpretation attempts to clarify the distribution of burden of proof for medical negligence,but there are still many ambiguities that need to be clarified from the explanation.It is imperative that the normative documents be interpreted in accordance with existing legal regulations.To clarify the distribution of the burden of proof of medical negligence,in order to provide guidance for judicial trial or proof activities of the parties.Articles 55,57 and 58 of “ The Tort Law of PRC” provide for medical negligence.As for the first two provisions,they are breach of the obligation of explanation and acquisition of consent,breach of the obligation of diagnosis and treatment.This article uses the ultimate facts theory in Japanese law for analysis.The third provision,namely the presumption of negligence,this article uses the theory of factual presumption in law for discussed.It is the legislator who introduces the presumptive theory into the certificate of negligence,aiming at reducing the burden of proof on the plaintiff?s side.Through the analysis and explanation of the three ways,confirming the main facts that the original defendant should prove during the transition process.Firstly,the obligation of explanation and acquisition of consent,the breach of the obligation of diagnosis and treatment belong to the breach of obligation of care that the medical institution should fulfill.There is negligence when the doctor violates the duty of care.The article clarifies the contents of “ The Tort Law of PRC” and “ The Interpretation” into corresponding evaluation basics fact and evaluation hinders fact.According to the academic principles and relevant norms,the responsibility for proof of medical negligence is distributed as follows.The plaintiff shall bear the burden of proof based on evaluation basics fact,while the defendant shall bear the burden of proof based on evaluation hinders fact.Secondly,the presumption of negligence stipulated in Article 58 is analyzed using the theory of factual presumption.The determination of the presumption of fault in Article 58 is a legal presumption of fact,which is presumed by the premise fact.Through the explanation of the presumption of negligence,the scheme of the burden of proof of the presumption of negligence is summarized as follows: the plaintiff assumes the burden of proof on the premise facts,and the defendant bears the burden of proof for the defense.At the beginning of the lawsuit,the plaintiff proves the premise fact;after the plaintiff completes the proof of the premise fact,the defendant proves the defense.