Discuss The Burden Of Proof For Medical Infringement

Burden of proof in medical tort refers to who shall undertake the burden of proof for important facts in the lawsuit of medical tort,and who shall be responsible for the risk of losing a lawsuit when the facts is not clear.Because of the complexity,professionalism and evidence bias of medical tort lawsuit,it has always been a difficult problem in legislation and judicature.Therefore,it still requires to be improved.The thesis of this paper is to propose the meaningful countermeasures under the existing legislative system by aiming at the problems reflected in judicial practice and drawing lessons from the advanced experience of extraterritorial systems.The legislation of burden of proof in medical tort in China follows three distinct stages: the general distribution rule of burden of proof-the inversion of burden of proof-the mitigation trend based on the general burden of proof,which reflects that legislation is moving forward in twists and turns,and moving gradually on the right track in the process of rational reflection.In this paper,empirical analysis is used to summarize the specific problems in practice,taking many judgment documents as samples.That means the legislation does not deeply excavate into the concept of faults objectification,the system of proof obstruction,and other mitigation of proof burden,which fails to meet the demands in practice,such as relying too much on expert opinions for the testimony of medical faults and causalities,so there are more phenomenons of identification instead of review.As the idea of "expert opinions only" is deeply rooted,and the "dualization" of medical damage identification system has not yet been improved,these problems need to be solved urgently,such as the lack of scientificalness and objectivity of the experts opinions.In extraterritorial countries,the mitigation systems of burden of proof have their own characteristics,such as "self-explanation of facts",“anscheinsbeweis(Primary-face proof)","general presumption","major medical defects","obstruction of proof" and so on,and expert evidence systems with different manifestations provide a lot of reference for the study of burden of proof in medical tort in China.Adhering to the general principle as the fundation,by means of the obstruction of proof system,general presumption,and the concept of faults objectification embodied in the principle of self-explanation of facts,the distribution principle of burden of proof are specially regulated in medical tort,in order to realize the transformation of burden of proof in medical tort comprehensively and to improve the existing legislative model in China.By learning from advanced experience under the institutional background of extraterritorial countries,medical damage appraisal strives to break the current system with dualistic expert evidence system of the "judicial appraisal-expert assistant”,aiming at the long-standing problems in the field of medical tort,such as the "appraisal-only" theory and the "dualistic" subject of medical appraisal.