Research On Legal Presumption Of Medical Fault

The subjectivity of fault itself and the professional dual factors of medical behavior make the determination of medical fault become the key and difficult point to judge whether the medical tort liability is established or not.Simplify the proof link,to reduce the difficulty of patient proof and accurately identify medical fault play a major role.This paper combines the legal presumption with the medical fault identification,and studies the specific application of the legal presumption of medical fault in China.In addition to the introduction,this paper consists of four parts:The first part is the necessity of the legal presumption of medical fault.In this part,from the characteristics of medical fault proof and the significance of the application of legal presumption,it is concluded that legal presumption is the best way to identify medical fault.First of all,through the analysis of the concept of medical fault,it is concluded that the proof of medical fault is the legal evaluation process within the framework of procedural law,the basis of fault proof is both medical and legal professional knowledge,medical fault mainly depends on indirect evidence proof,doctor-patient proof of high synergy four characteristics.Secondly,based on the characteristics that the legal presumption is derived from the basic facts,it points out that the legal presumption is beneficial to regulate the conflict of interest,safeguard fairness and justice,simplify the proof link,improve the efficiency of litigation,unify the judgment standard and guarantee the judicial public trust in the determination of medical fault.The second part is the application of legal presumption in medical fault determination.This part is based on the whole logical process of legal presumption,and analyzes the characteristics of legal presumption in medical fault determination.First of all,the basic fact is the starting point of the legal presumption of medical fault,which mainly comes from the facts proved by evidence,self-admission facts and judicial cognitive facts.The patient shall bear the burden of proof on the basic facts,and when the standard of proof is met,the medical fault is temporarily presumed to be established.Secondly,the legal presumption of medical fault has three remarkable characteristics:probability,rebuttable and statutory.Finally,allowing the doctor to refute is the procedural guarantee of the application of the legal presumption.The theory of adversarial litigation structure,the content of Civil Code and the limitation of legal presumption provide theoretical basis for it.The doctor can refute the basic fact,the normal connection or the presumption result,when it refutes the basic fact,does not need to bear the burden of proof,when refutes the normal connection or the presumption result,must bear the burden of proof.The third part is the status of legislation and reflection of the legal presumption of medical fault in China.This part mainly discusses from the following three aspects: first,the legislative changes of the Civil Code of People’s Republic of China on the legal presumption of medical fault,pointing out two most recent provisions that the causal relationship between medical tort and damage consequences is the premise of legal presumption,and strengthening the responsibility of medical records-keeping of medical institutions.Second,article 1222 of the Civil Code of People’s Republic of China,on the understanding and application of the legal presumption of medical fault,holds that article 1222 is a legal presumption that medical parties are allowed to refute,in which "violation of laws,administrative regulations,regulations and other relevant diagnostic and treatment norms" is evidence of presumption of fault rather than basic fact,and "concealment or refusal to provide medical records related to disputes;loss,forgery,tampering or illegal destruction of medical records" should be considered as proof of obstruction rather than basic fact.Third,the shorts of the legal presumption of medical fault in China,the analysis shows that the basic facts in the specific application are mistaken as the identification standard of medical fault,the starting conditions and standards of the legal presumption of medical fault are unclear,and the application of the legal presumption of medical fault lacks openness.The fourth part is the improvement of the legal presumption of medical fault in China.The normative application of the legal presumption of medical fault should include clear basic facts and perfect procedure.The basic facts must meeting three conditions of high probability,moderate difficulty and typification.In addition,the application procedure of legal presumption should be perfected,and the judge should strictly abide by the relevant procedural provisions of initiation,rebuttal and adjudication,clearly stipulate the applicable conditions of legal presumption,ensure the right of refutation of medical parties,and comprehensively debate the purpose of determining medical fault.The judge should strengthen the application process,the application basis and the openness of the application conclusion of the legal presumption of medical fault,and explain to the parties the specific process of the legal presumption,a certain fact and the reasons for the determination,so as to protect the parties’ right of appeal.