Author:Jiang Jingfeng lawyer

　　

   The burden of proof that the burden of proof in litigation, refers to the facts of the case, the party shall claim rights or legal burden of proof obligations of Party A to provide evidence to prove that, in the end if the facts of a case of litigation is not clear, the burden of proof of the party will lose or the adverse consequences of litigation. It includes four aspects, one is the proof of the facts of the case and who will bear the responsibility? Determine the subject of proof and the allocation of the burden of the problem; two is the burden of proof obligations of Party A to provide evidence to prove the facts of the case? It is proved that the object of the problem; three is the main body of proof provided evidence to what extent the burden of proof is completed? That is the standard of proof; the four is the evidence does not make clear, determine the facts of a case, the facts of the case are still unclear, chaotic and uncertain state who should bear the responsibility, the burden of the consequences of not problem.

　　

   The distribution of burden of proof in the medical tort lawsuits, a

"The Supreme People's court" several regulations about the civil action evidence article fourth (eight) provision of burden of proof in medical tort lawsuit litigant both sides. The implementation of nearly four years, in the judicial practice, still require patients to bear the responsibility that overweight patients, appeared the win rate than the implementation of the provisions before, did not rise to fall instead of the strange phenomenon.

Let the patient take responsibility that overweight is the main reason, performance is: one is that the medical behavior, professional and strong, the judge can not easily identify facts. Even if is to ascertain the dispute, is also required to do the medical accident identification; two of the medical accident identification conclusion without analysis, as long as the medical institutions to give the appraisal conclusion does not belong to medical accident, requires the patient to provide evidence to overthrow, otherwise, will make the patients adverse judgment; three is the matters should be medical institutions the burden of proof, requiring patients, for example, to the authenticity problem of medical records after the modification, the non authenticity requirements of burden of proof in medical records of the patients. The results of the trial fairness treatment, is not conducive to the settlement of disputes timely, reasonable.

Admittedly, medical tort disputes compared with other civil disputes, does have its particularity, which relates to the fact in dispute adjudication personnel professional strong, lack of medical knowledge. However, the various cases of differ in thousands of ways, the judge can not become the expert of each industry, society will not require proficient in various professional judge. The duty of a judge, is based on the principle of burden of proof, the burden of proof obligations for a party, can give the relevant evidence, and reach the standard of proof related, persuade the judge. Otherwise, it shall bear the adverse legal consequences. Medical dispute cases to be complicated, it is difficult to judge, in fact, as long as the real understanding of medical disputes over the allocation of the burden of proof principles, and strictly follow the rules of evidence, it is not difficult to ascertain the facts of the case, so as to make the right decision.

(a), the principle of distribution of burden of proof in medical dispute cases

The judicial interpretation of the Supreme Court explicitly "medical tort litigation arising out of acts, there is no causal relationship and there is no medical mistakes bear the burden of proof between from medical institutions, medical behavior and the harm result". The rule reflects the principle of fairness and the principle of honesty and credit, is conducive to the protection of the legitimate rights and interests of patients.

In the distribution of burden of proof, will prove an important, complex part of the facts of the case, the burden of proof distribution proved by medical institutions; second, relatively simple fact burden of proof by the patients. It is from this sense, we say, reverse the burden of proof in medical tort lawsuit. It should be noted that this is only part of the inversion, inversion, not by the medical institutions bear the full burden of proof.

Why should the medical dispute cases reverse the burden of proof?

One is the need to protect the weak. The medical behavior, medical institutions and medical personnel, with professional knowledge and their own facilities, process of patients with medical treatment or medical rehabilitation. Medical institutions and medical personnel in an active role in the process of medical treatment, the patients cooperate, in a subordinate position. On the medical knowledge in patients, this is self-evident. The patients belong to the weak in receiving treatment, medical institutions, a. The doctor-patient relationship, right the most vulnerable patients, therefore, the relevant laws, administrative regulations, rules and regulations, require medical institutions and medical personnel, to the obligation to the utmost good faith and with full attention, in order to protect patients. Medical tort litigation, inevitable requirement of medical institutions bear the main burden of proof, the essential justice to protect the weak and the handling of cases.

The two is determined by the difficulty of proof. Medical institutions and medical personnel to rescue plan, risk factors, treatment outcomes and whether it will cause harm to patients and other aspects of the problem, far more than in patients with clear. Medical institutions for litigation evidence required than in patients with, for example, medical records, check list, report, prescription, medical, nursing records, records, consultation records, operation scheme as evidence, easier to collect, preserve than patients, litigation ability was stronger than the patients. For the convenience of investigating the facts of the case, to make the correct judgment, by medical institutions shall bear the main burden of proof.

(two), shall bear the burden of proof in the following

The legal relationship between the 1 medical institutions, and proof of the fact;

2, the civil rights and interests have been infringed upon the facts;

3, the scope of the loss fact.

Specific include:

First, outpatient or inpatient records, including inspection, test report, receipts, to prove that the doctor-patient relationship exists, evidence of the occurrence of the damage results.

Second, medical expenses, lost income, nursing fees, transportation fees, fees and other evidence of nutrition. Proof of medical behavior of patients has resulted in the actual loss.

Third, such as a disability, should be applied for the identification, and provide the degree of disability identification conclusion, to prove that the medical behavior on patients caused real damage and damage degree.

Patients should provide the evidence, if not, will be considered of facts is not established, the request is not supported. At the same time, only to prove the fact does exist in the patients with proof, it may cause controversy and confrontation, "burden of proof" is meaningful.

(three), if the medical institution that deny patients, should have no causal relationship exists and there is no medical mistakes bear the burden of proof between the medical behavior and the harm result

Specific include:

1 , the difficult case discussion record, consultation, records and other subjective medical records. The evidence can not only reflect the entire treatment process, and it is proved that the medical institutions claim, namely medical behavior and the damage there is no causal relationship between the results and there is no medical mistakes.

There is no causal relationship between the 2, that the medical behavior and the harm of the evidence.

(1), no damage to the evidence;

(2 patients), the damage is caused by the patient's own disease or their own fault or non medical evidence;

3, the medical institutions to prove there is no medical fault evidence.

(1), a statutory duty of medical institutions have been as evidence;

(2), medical behavior conforms to the standard of diagnosis and treatment of evidence;

(3), has the obligation, not a violation of the patient's right to know the evidence;

(4 ), if the patient death, shall be issued by the autopsy report, in order to prove the death is caused by the fault of medical institutions. If the patient side refused to autopsy, it should provide the patient refused to evidence.

(5), damage is the result of medical science cannot be foreseen, can not avoid the evidence.

Two, the standard of proof in the medical tort lawsuits

Standard of proof, refers to a party provides evidence to bear the burden of proof to prove the facts of the case to reach to the degree of. The burden of proof is a party, the burden of proof can lift, is to see whether the evidence to prove that the standard. That is the burden of proof of the parties, be proved by evidence, the facts of the case gradually clear, determination. If the case is the end of the trial, the facts of the case are still unclear, shall bear the burden of proof of the parties bear the adverse consequences of litigation.

(a), the standard of proof in the medical tort cases in the judicial interpretation of the Supreme Court requirements

The judicial interpretation of the Supreme Court, meaning from the text, the standard of proof for medical institutions should meet the requirement is very high. "There is no causal relationship", both does not have a direct causal relationship does not exist, including indirect causality; "there is no medical mistakes", including no major medical negligence, also there is no medical error in general. The standard of proof, degree of proof should meet the requirements of medical institutions to provide evidence, is quite high. To provide the medical evidence, in order to reach that height is very difficult.

(two) requirements, the Civil Procedure Law of the standard of proof

"Civil Procedure Law" requirements of the standard of proof is: "the case facts are clear, evidence really fully". The judicial interpretation and civil procedure law the provisions of the Supreme Court is the same, are required to meet the objective reality of the level of standard of proof.

Asked the Supreme Court judicial interpretation and the law of civil litigation proof standard is too high, and separated from the reality, but not to the provisions of the law should be the role of. In practice, the judicial organs are not in accordance with the above provisions, to determine whether the evidence to prove that the standard of legal. A lot of problems in the practice, is the standard of proof of medical institutions in judicial organs to provide the evidence required, far less than the statutory standard.

(three), the standard of proof of medical tort cases, it is necessary to emphasize the protection of patients, but also consider the possibility that should reach a certain degree of.

1 , "preponderance of the evidence" standard, can not be the standard of proof of medical tort cases. "The preponderance of the evidence" standard, namely the "preponderance of probability" standard, is the general tort cases

The standard of proof should reach, cannot become the medical tort lawsuits evidence standard of proof.

The general tort cases, both parties have the same duty, in the evidence collection, acquisition, storage capacity to action, the equivalent strength. A proof of degree higher than the other, achieve the "preponderance of probability", the facts proved by evidence should be recognized.

Medical tort belongs to the special infringement, special tort is engaged in the construction industry, the highly dangerous work, of citizens harm. Because of the public's lack of this knowledge and experience, effectively guard against the risk can not be, law of units and individuals engaged in construction industry, to be the greatest good and more cautious attention duty. Therefore, in medical tort lawsuit, proof standard medical institutions to provide evidence to achieve the standard of proof, is higher than the ordinary tort cases evidence, it is entirely possible, and it is also very necessary. Standard of proof is relatively low, not only on the case of unfair, is not conducive to the protection of public interests, improve and develop the more detrimental to the service quality of medical institutions.

2, the standard of "objective truth", in practice it is impossible standards.

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3, higher than the "preponderance of the evidence", below the "objective truth" standard of proof, the standard of proof is also easy to operate in accordance with the actual.

The two kinds of standards of proof standard overcomes the defects that the facts of the case, the more fair, reasonable, convenient, not only conducive to safeguarding the interests of patients, but also conducive to the development of medical science, more conducive to the maintenance of social fairness and justice.

(four), judge whether the evidence to medical tort litigation proof standard basis

1, whether the patient provides proof of evidence for the existence of the doctor-patient relationship?

2, medical negligence is on patients caused damage, damage degree,

There is no evidence to prove that?

3, medical negligence caused by the actual loss to whether patients, patients have no evidence to support your claim?

4 , medical institutions is up to the full attention obligation? For example, to comply with the duty room, first-aid room system, urgent consultation system, to fulfill the obligation to comply with the specification, standard of diagnosis and treatment, routine.

5 , medical institutions if that belongs to a rare disease, or encountered a medical problem, whether it provides proof for patients harm is relevant evidence of contemporary medicine unforeseeable, unavoidable?

6 , if the patients caused great damage, or cause disability or death, medical institutions to provide evidence on whether it conflicts between reasonable to exclude evidence, evidence and the facts of the case between? According to the medical institutions to provide evidence of the conclusion is the only? The reason that such damage results in patients with autoimmune disease or is their own fault.

This criterion, is principle and flexibility. That is, in general, or minor medical tort disputes, to provide the evidence for medical institutions, whether to reach the standard of proof, to slightly more than the "preponderance of the evidence" rules to check and judge; for major medical injuries disputes, with high standards of medical institutions provide evidence to prove that the standard. But the two are somewhere above the "preponderance of probability", below the standard of "objective truth". In the specific case, pay attention to the difference between injury and major injuries.

Case three, medical tort lawsuit in fact

The facts of the case is the abstract thinking activities, is the use that standard to measure the burden of obligations of the parties provided evidence to prove, whether the level required by the standard, whether the facts in the case are proven, whether already clear, determined, and make the judgment process. Therefore, the facts of the case, in fact is the concrete application of standard of proof or is it the continuation and deepening.

The fact is not completely proven, the role of the judge is the analysis of the burden of proof obligations of Party A, provide relevant evidence, whether by legal, logic, social life experience, has made the convincing explanation. The proof process is according to law, reasonable, whether the evidence provided to the requirement of standard of proof. The judge occupation occupation by faith and experience, and according to the relevant rules, make the determination of the facts of the case.

Then, in the medical tort suit, how to find the facts of the case? The identified with the important evidence in the case analysis.

(a), analysis and judgment of the medical accident identification conclusion

Patients brought medical tort litigation, medical institutions in metropolitan patients agreed to do the medical accident identification. Some even before entering the procedure, have made the medical accident identification. The court in order to find out the facts of the case, also suggested the two sides to do medical identification.

In fact, whether do the medical accident identification, cannot lump together, and should be based on the cause of action. For easy to ascertain the dispute, without identification. The need for identification to the facts of the case, according to the concrete circumstances. The plaintiff if put forward medical accident compensation request, should do the medical accident identification; if the plaintiff other than medical malpractice tort compensation, should practice medical expertise, that is medical fault identification. Because of the decision to ask directions, ask for a decision of facts, the parties should be according to their own claims should be determined to collect evidence, determine whether the application for identification, the identification.

The medical accident identification, for various reasons has been questioned. The medical accident identification conclusion often has the following defects:

1, the lack of the identification process description;

The question of whether 2 , violation of medical and health management laws, administrative regulations, departmental rules and norms of medical care, on a routine medical behavior, not expressed, in fact is to avoid this problem.

3 , confirmed the existence of medical fault, in the conclusion that there is no causal relationship between the medical behavior and the harm, but between the medical behavior and damage there is no causal relationship and why a tanning treatment to Ao Ao?

Whether there is a causal relationship between 4 were identified, legal requirements to identify the bodies of medical behavior and the harm, and the identification of institutions for patients "condition" identification ", and that there is no causal relationship between illness" and the medical behavior. In patients with autoimmune disease, and usually there is no causality between medical behavior, this is a common problem, no identification. The matters need identification, i.e., whether there is a causal relationship between damage and medical behavior, but make No. Conclusion this, really is different, shoot at random.

5, expression is not standardized, vague language, let a person be all at sea feel at a loss.

Medical institutions to produce identification conclusion that, judge will often require patients to apply practice medical identification, otherwise, would make for patients with unfavorable judgment. In fact, the appraisal conclusion containing the above, did not reach the degree of proof required by law, the facts of the case are still unclear, the burden of proof in medical institutions is not complete legal. At this time, no transfer of burden of proof.

(two), the main application for further identification of how to determine the

As stated above, the medical institutions to provide the medical accident identification conclusion, whether to apply for practice of medical identification?

1 , if the medical accident identification conclusion has the defects, it is not necessary to apply to practice medicine identification. Because the medical institutions to provide evidence to prove that did not reach the degree, not through the evidence to prove myself there is no fault, not through that the facts of the case.

2 , if the patient is not brought medical accident compensation, even if the medical institutions of medical accident identification conclusion, also cannot recognize the evidence is probative force. If you really need to do identification, shall be borne by the medical institution for forensic identification. Because the proof of their medical behavior and the damage there is no causal relationship between the results and there is no medical mistakes, medical institutions are the legal burden of proof.

3 , if you mention is compensation for medical malpractice, medical malpractice identification and medical institutions and in conformity with the specifications, at this time, patients should apply for re identification of medical accidents, or the application for the medical fault identification. Because according to the judicial interpretations of the Supreme Court, which belongs to the medical accident, according to the "Regulations on handling medical accidents" management; other medical compensation disputes caused by reasons other than medical malpractice, shall apply to the general rules of civil law.

(three), about the authenticity of the records identified

Medical tort cases, the problem mostly relates to medical record authenticity. Objectivity and subjectivity of a part of medical records all the medical institution control. After a dispute, medical institutions are often not timely medical records sealed. Patients in that right was infringed, usually first and medical consultation, ignore the application of medical records sealed. At this time, medical institutions have been known to dispute, and most of the control of their own medical records, modify records the possibility exists.

In the trial practice, medical institutions for medical records and other evidence, many have altered trace. At this point, the judge that the medical institutions have fulfilled the duty of proof, proof of medical record unreal duty in the patients, patients with paperwork requirements identification. This approach is not appropriate.

A key part of 1 records, if altered, cannot distinguish the original writing content, there is no need to do document identification. This record has been lack of authenticity, unable to prove the facts of the case. The judge may direct that the evidence probative force.

2 , medical record has not been altered, but patients have evidence of its application to copy and sealed records request is not supported. The medical records of medical institutions can not become favorable evidence alone, but should be combined with other evidence, the proof of effectiveness to be determined.

3 , if the medical institutions to provide medical records, the ordinary people's common sense view, language, font, punctuation, arranged with personal characteristics and writing habits, and coherently, grammatical, no corrections, and promptly sealed records. If patients with only the authenticity of the records in question, has not raised any objection to the contents of the application documents, it shall be patient identification. Because this has occurred in the transfer of burden of proof. Patients have the obligation to provide evidence to support their claims.

4 , if the patient is pointed out that the contradictions between medical record content, or to add, delete, alter the traces, and pointed out that the medical institutions in the event of a dispute is not timely medical records sealed fact. As long as the patient's plea to "the apparent truth", namely the ordinary people's point of view, it is doubtful if authentic records. For identification, the application shall be borne by the medical institutions, medical institutions because of unfinished duty of proof, the evidence does not reach the standard of proof required, through the identification of beyond reasonable doubt is the obligations of the medical institutions. At this time, the transfer of the burden of proof does not occur, should the burden of medical institutions.

Article published in the "world" in 2006 first lawyers

 

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