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Research On The Distribution Of Burden Of Proof In Medical Damage Liability

Posted on:2020-03-30Degree:MasterType:Thesis
Country:ChinaCandidate:Y Z PanFull Text:PDF
GTID:2416330602953890Subject:Law
Abstract/Summary:PDF Full Text Request
In recent years,with the deepening of the reform of the medical system and the improvement of the people's awareness of the rule of law,the number of medical damage cases is increasing.How to solve the conflict between doctors and patients through legal means,so as to promote the harmonious construction of the relationship between doctors and patients has become the focus of today's society.In judicial practice,the distribution of burden of proof in medical injury disputes directly affects the rights and obligations of both doctors and patients in the process of hearing medical injury cases,and is also the key issue affecting the outcome of the trial.How to reasonably and fairly distribute the burden of proof in medical damage cases has always been the difficulty and focus in the relevant cases.The purpose of this paper is to analyze the relevant legal provisions and evolution of burden of proof allocation in medical injury disputes in China,and to explore how to further improve the allocation of burden of proof in the judicial practice of medical injury cases by combining judicial practice and referring to relevant cases abroad.This paper is divided into four parts:The first part introduces the relevant concepts involved in medical damage liability.Firstly,it clarifies the concept of medical damage and the classification of medical damage.Secondly,it introduces the related concepts of burden of proof allocation in medical damage cases,such as inversion of burden of proof and mitigation of burden of proof.The second part mainly discusses the distribution of burden of proof in medical damage in China.Firstly,it introduces the legislative evolution of burden of proof distribution;secondly,it expounds the distribution of burden of proof of medical negligence and causality elements under the current law of our country and the distribution of burden of proof under the special circumstances of medical negligence exemption of medical institutions;finally,it expounds the distribution of burden of proof of causality in medical product damage.The third part mainly discusses the problems existing in the allocation of burden of proof in the current stage of medical damage in China.Firstly,under the condition of unequal information and medical knowledge level,the burden of proof of medical negligence and causality elements is fully allocated to patients,which increases the burden of proof of patients and is not conducive to balancing the burden of proof of both sides.Secondly,although the burden of proof of medical product damage has been clearly allocated,there are still difficulties in practice.Moreover,the "Medical Injury Judicial Interpretation" protects the right of patients to apply for judicial appraisal,but there are also cases where even if the application for judicial appraisal is filed,such as termination of judicial appraisal procedures beyond the appraisal ability of the judicial appraisal center,and finally the conclusion of judicial appraisal can not be reached.In this case,the law on how to further allocate the burden of proof is not clear,the judicial identification system and legislation need to be further improved.The fourth part mainly through the analysis of the burden of proof in medical damage disputes in China,explores the scheme of improving relevant legislation and supporting measures.First,the mitigation system of proof can be introduced in medical damage cases.When the burden of proof of patients reaches a certain standard,the burden of proof can be allocated to medical institutions;secondly,the relevant legislative provisions on medical product damage can be further improved;finally,the system of judicial appraisal can be perfected through legislation,and the expert database of judicial appraisers can be established.
Keywords/Search Tags:Burden of proof, Distribution of burden of proof, Medical damage
PDF Full Text Request
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