Text / Lai Qinghui

   In October 27th this year, the NPC Standing Committee "Tort Liability Act (Draft)" three edit delete rule fifty-ninth: "patient's damage may be caused by medical behavior of medical staff, in addition to medical personnel to provide evidence to the contrary, there is causality presumption in the diagnosis and treatment behavior and damage of the patients between". This one out immediately drew medical circles, law circles of a discussion, social objections can be heard without end, overwhelming! The netizen thinks, medical damage cases were already in a weak position, remove this, patients' rights is more difficult. And the new "tort liability act" once finally passed, the burden of proof of medical lawsuit will become history, "inversion" is turned to "put", so what is your opinion? This you are for or against it? While I am a doctor felt the need to say what.

    Inversion of burden of proof has been in our heart of the medical staff caused great shadow, resentment is always great. Excessive medical treatment in the regulations is also a recent medical institutions; the clinical emergence of some unreasonable inspection phenomena, arising from the so-called "extra checks" high medical costs, an important reason and even medical staff patient selection phenomenon. But litigation practice in our country also has because of "burden of proof" and lost the case also It is often seen. ordered medical institutions.If the burden of proof is cancelled, in concept has great influence on our doctor will, medical personnel are welcome. So, the reform of litigation rules of burden of proof, can alleviate the medical staff of the psychological pressure to a certain extent, is helpful to promote the development of medical science.

   And the current through the legal channels to deal with medical disputes is a very chaotic situation, the main performance is: there is no unified medical accident and medical mistakes in the case; not unified medical fault identification in medical accident identification and forensic medicine in the identification of the existence; not unified administrative laws and civil laws specification in the application of the law of compensation. Because of no uniform law applicable, inversion of the burden of proof on the formation of more serious consequences, such as: irrational aggravated the responsibility of the medical institution, more or less resulted in "defensive" medical, eventually all the interests of patients; to a certain extent, further intensified the contradiction between doctors and patients;So, the reform of litigation rules of burden of proof, on both sides is favorable, the reform aims toProperly handling medical disputes, both to protect the legal rights of patients, to protect the legitimate rights and interests of medical personnel.

   But, in recent years due to the high tension between doctors and patients, we state a hospital in accordance with the requirements of the Ministry of health, itself is a very strict management. Standard of diagnosis and treatment activities, the formulation and implementation of rules and regulations, each hospital is quite good,I think the inversion of onus probandi cancellation will not cause the slack of hospital management. So, cancel the burden of proof, I think the majority of the patients can rest assured.But, in the development of medicine also change rapidly, the disease diagnosis difficulty is increased, some diseases are not necessarily can cure some disease, also produce syndrome, which may cause damage to the patients, but is inevitable for our medical, hospital, doctor. Like America, Europe such developed country, the incidence of Hospital of complications and error is around ten percent. In this case, hope to patients and society can give understanding, if it continues to perform the inversion of onus probandi, may lead to patients with complications, the hospital will lose money, this is not only the medical side of unfair, will enhance the conflicts between doctors and patients.

   In fact, the legal profession is that the reforms will not have a substantial impact on the judicial practice, also won't raise patients litigation threshold, whether the burden of proof is "put" or "inverted". If a medical institution and its medical staff is not well perform various standard of diagnosis and treatment, routine, not in accordance with the provisions of the writing case, still need to undertake the legal liability. They pointed out that the "Tort Liability Act (Draft)" the formulation and review is "licensed doctor law" and other medical related laws and more stringent, and is the highest organ of state power, National People's Congress examined and adopted. They think the laws will change the chaos of medical disputes, the compensation liability under the unified, clear. They also believe the laws the biggest change will be to identify patients were with positive, correct some because patients do not match, resulting the responsibility identification of events; they also believe the law will give physicians, the legal environment, the protection of the rights and interests of some physicians normal.But to cancel the responsibility inversion does not mean that doctors do not need to bear the burden of proof in any.They believe the law introduced the original intention is not to defend him.They are more strongly to remind the medical staff, patients and delivery is the health and life, the legal environment of normal is not reason to slack off, it is the embodiment of the patients and social trust to the medical staff. While doctors call for strict responsibility, to afford patients each trust.

    In this regard, "Health News" so interpretation:Remove the inversion of evidential burden is expected late error correction.It is believed that:

   The inversion of onus probandi, once thought to be a powerful weapon against the strong weak patients hospital of technical barriers, by the public and the media pursued. However, the inversion of burden of proof in lawsuit of medical damage threshold, let the nominal part of patients, lead to excessive litigation, hospital or struggling to cope with, or bow to recognize. Under the provisions of the inversion of evidential burden, as long as they can prove that their medical and hospital exists, that without any damage related medical behavior, it can initiate proceedings. The results, people or because the treatment is not expected, or the cost of treatment to achieve the purpose of dissatisfaction, with a lawsuit to the hospital pressure, even let the occupation were found living space. In the face of their explanation, persuasion is invalid, identification of medical accidents do not cling to one's view, to compensate. Part of the hospital be pestered beyond endurance, buy peace after they found that fall into the vicious spiral.

The inversion of evidential burden also makes the focus of medical attention to the transformation of the objective, aggravate the economic burden of the patients, but also makes the not harmonious doctor-patient relationship even worse. The doctor's growing "evidence consciousness", to an immeasurable role on big criticized the enclosing type checking: with money, for their diagnosis on the full range of "insurance", and also for the hospital to increase income, this is really a good deal. The doctors and nurses are focused on medical instruments "tight", the signature projects are innumerable, content to the hearts of patients with hairy. The results, both doctors and patients heavily-guarded highfalutin, legal procedures, humanistic care is all gone.

A designed to protect the rights and interests of patients and the birth of the system, but did not have the positive effect on medical doctor -- much less risk, care for the patient; doctors weigh treatment more difficult operation, patients received less chance; the doctor concerned evidence more, consider the cost optimization less......

The world is not right or wrong, not black and white, in between there are a vast grey area. Human differ in thousands of ways, the myriads of changes of disease, medical behavior has too much uncertainty. Each treatment, in fact is an experience based on heuristic based on an adventure, based on reasonable assumptions. Increased medical responsibility, not be able to protect the rights of patients, reverse the burden of proof in the medical tort, not a panacea.There is no doubt that, even if the burden of proof is really not inverted, way of thinking and behavior of both doctors and patients has been formed, is unlikely in the short term......