Viewpoint... On the development of the burden of proof of medical infringement in China.
Published:
2024-09-11
China's provisions on the burden of proof in medical tort are not static, but in the repeated game, roughly formed: who advocates who proof-the burden of proof inversion-multiple burden of proof distribution stage of these three stages.
The problem of doctor-patient relationship has always been an urgent problem to be solved in our country. In medical dispute cases, there are some problems, such as professional information asymmetry, incomplete communication, and incompletely predictable treatment results. However, medical damage infringement involves the adjustment of the interests of patients and medical institutions, and the dominant positions of both parties are obviously different. Therefore, in the field of medical infringement, according to the general burden of proof of "who advocates who gives evidence", the patient is at fault for the diagnosis and treatment, and the causal relationship between the fault and the damage result is difficult to prove. China's provisions on the burden of proof in medical tort are not static, but in the repeated game, roughly formed: who advocates who proof-the burden of proof inversion-multiple burden of proof distribution stage of these three stages.
1. Who advocates who gives evidence stage
Although the promulgation and implementation of the General Principles of Civil Law and the Measures for Handling Medical Accidents in 1987 did not make special provisions for medical tort disputes, it stipulated a universal rule for general torts-adopting the principle of fault liability, and medical torts naturally applied this rule, thus the burden of proof adopts the distribution rule of the facts of the elements of fault tort, the patient shall bear the burden of proof for the four elements of tort, damage fact, causation and fault. Obviously, for patients who do not have the main evidence materials and lack of medical expertise, it is difficult to prove the facts of the infringement elements, and the civil rights of the injured patient have not been properly protected.
2. The stage of inversion of the burden of proof.
The "Several Provisions of the Supreme People's Court on the Rules of Evidence in Civil Litigation" implemented in April 2002 specifically stipulates medical tort disputes: "For tort disputes caused by medical acts, the medical institution shall have no causal relationship between the medical act and the result of the damage. And there is no medical fault to bear the burden of proof." Although this regulation has greatly reduced the pressure of proof on patients, the resulting drawbacks also emerge in a short period of time: because patients only need to provide preliminary evidence for their visits to the hospital and the damage consequences, the proof of causality and fault, which is more difficult to provide evidence, is transferred to the hospital, which reduces the threshold of medical litigation and excessively increases the burden of proof and litigation pressure of the hospital, as a result, hospitals are forced to set more procedures to avoid future disputes, making medical staff undertake more cumbersome and useless formal work, which aggravates the contradiction between doctors and patients.
3. Multi-burden allocation stage.
Due to the promulgation of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law in 2015 and the amendment to the Several Provisions on Evidence in 2019, the provisions on the inversion of the burden of proof in Article 4 of the original Rules of Evidence were deleted. The reason is that the allocation of some burdens of proof has been reflected in the new Civil Code and the Interpretation of Civil Litigation. Therefore, returning to the Civil Code and the Interpretation of Civil Litigation, Article 1218 of the Civil Code already states that general medical torts should still be based on the principle of fault liability, with the plaintiff bearing the burden of proof on the facts of the general tort element. However, this does not mean that the plaintiff's burden of proof has increased. It is supplemented by Article 4 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of medical damage liability disputes: "if a patient claims that a medical institution shall bear the liability for compensation in accordance with the provisions of Article 54 of the tort liability law, it shall submit evidence of treatment and damage to the medical institution. If a patient is unable to submit evidence that the medical institution and its medical staff are at fault, and that there is a causal relationship between the diagnosis and treatment behavior and the damage, the people's court shall grant permission to apply for medical damage identification in accordance with the law. If a medical institution claims not to be liable, it shall bear the burden of proof for the defense of the circumstances stipulated in the first paragraph of Article 60 of the Tort Liability Law." This means that although the plaintiff bears the general distribution law of the burden of proof in the lawsuit, in the general medical infringement and medical ethics infringement, he can first prove that he went to a medical institution and was damaged, and it is difficult to prove the fault and causality. Can apply for medical damage identification, which to some extent alleviates the pressure of the plaintiff's proof, but it is not the inversion of the burden of proof.
The provisions of the current law on the burden of proof in medical damage are scattered in substantive law and procedural law, and the burden of proof of the same fact in litigation can only be assigned to one of the parties, and which party bears the burden of proof, in principle, is predetermined by law, regulations or judicial interpretation. In the provisions of Chapter 6 of Title VII of the Civil Code, the burden of proof arising from different principles of attribution is also different, therefore, for medical damage infringement, the principle of attribution should be determined first, and then the provisions on the distribution of the burden of proof should be introduced. In view of the disadvantages arising from the inversion of the burden of proof in the old Evidence Provisions, the new principle of attribution of medical damage is clarified in the tort liability section of the Civil Code, and the corresponding allocation of the burden of proof is clarified.
The current law combined with the judicial practice of traditional Chinese medicine disputes problems for the allocation of the burden of proof has been modified and improved, to a large extent can solve the problems arising from the provisions of the burden of proof in the past, there is great progress, embodied in the following aspects:
First of all,Medical damage belongs to the special tort in the tort liability series, that is, medical damage liability. The types of medical damage liability can be divided into medical ethics damage liability, medical technology damage liability and medical product damage liability, of which medical ethics damage liability includes the damage liability for violation of the obligation of notification stipulated in Article 1219 of the Civil Code and the damage liability for violation of the obligation of confidentiality stipulated in Article 1226. Liability for medical technology damage is stipulated in Article 1221 of the Tort Liability Law. Liability for damage to medical products is reflected in Article 1223. There are different principles of liability for medical damage, and Article 1218 of the Civil Code clearly stipulates that the general principle of liability for medical damage is the principle of fault liability, and the principle of fault presumption and no-fault liability is a special case of the principle of liability for medical damage. From general fault to presumption of fault to no-fault liability, it reflects the rising rigor of attribution. And because the rising strictness will restrict the freedom of behavior even more, the legislator will limit the application of the presumption of fault liability and no-fault liability to the scope of the law. According to this provision, it can be concluded that the general principle of fault liability applies to other medical damage liability, except for medical product liability, which is expressly provided for by law. This completely changed the previous provisions of the burden of proof in medical litigation.
Secondly,Article 1222 of the Civil Code clearly stipulates the principle of presumption of fault. It is determined that as long as the patient has evidence to prove that the medical institution has violated laws and regulations, concealed, forged, tampered with evidence, etc., the medical institution can be directly presumed to be at fault. To a certain extent, it eased the pressure of proof on patients, indicating that the change of the inversion of the burden of proof does not mean a complete tilt towards medical institutions, it also reflects the legislator's thinking about the difficulty of patient proof. After all, in medical activities, the hospital holds a considerable part of the evidence and information. Reducing the pressure of patient proof is also a manifestation of the tilt protection of the interests of patients.
And finally,Article 4 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Medical Damage Liability Disputes stipulates that patients who believe that medical institutions and their medical personnel are at fault, and that there is a causal relationship between diagnosis and treatment and damage, can apply for medical damage identification in accordance with the law. To a certain extent, the provisions of the application for medical damage identification make up for the plight of the lack of professional knowledge of patients. However, Article 30 of the Evidence Provisions also specifies the judge's right of interpretation for the application of appraisal opinions. If the patient's proof is difficult, the judge is allowed to explain to him, which also reflects the protection of the weak party in the legislation. This right of interpretation does not exceed the judge's authority or the limit of the right of interpretation. On the contrary, in order to better promote the discovery of the truth, it helps to resolve the dispute.
Medical tort, as a special existence in tort, has both the generality of tort and its own particularity. The allocation of the burden of proof for medical torts in China's Evidence Provisions and Civil Code is based on various factors such as legal provisions, legal policies, legal values, and exemptions, which reflects the amendment and improvement of previous legislative deficiencies.
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