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

The burden of proof of the parties in the case of medical damage liability dispute is the dispute and difficulty in judicial practice.The core of burden of proof is the distribution of burden of proof.Tort liability law and relevant judicial interpretations have made specific and clear provisions on the distribution rules of the burden of proof in medical damage liability disputes.However,due to the professionalism and complexity of medical damage,in the trial practice,when the truth of the case is unknown,when the burden of proof is distributed among the parties for individual cases,if the judge simply follows the evidence in the sense of result.There is no obstacle for the defendant who has the ability of professional knowledge to allocate the burden of proof according to the theory of clear liability,but for the patient who is the plaintiff,because of the lack of professional knowledge,it is difficult to directly complete the essential facts,especially the burden of proof that there is a causal relationship between the fault of the medical party and the medical behavior and the medical damage.At this time,the problem of the fact of the case is not solved,but the means of proof have not been exhausted,so the plaintiff who claims the facts of the element should bear the risk of losing the case,which is unfair.In this case,the judge should,in accordance with the theory of burden of proof in the sense of act,require the plaintiff to apply for judicial appraisal of medical damage,and help the plaintiff to complete the burden of proof by means of the third party appraisal institution.However,as evidence,the medical damage appraisal opinion is in the same evidential status as other evidence in the case,and does not have the superior evidential effect.The judge can make the determination of whether to accept or not only after examining the form and substance of the judicial appraisal opinion in the trial process of the case.