civil

Civil medical litigation is a modern type of litigation. Hospitals are usually large financial groups. There is also an imbalance of professional knowledge between medical staff and patients. Medical records and related information are mostly retained by the hospital, so there is a problem of biased evidence. However, the same Medical behavior may also be highly uncertain due to the patient's special constitution, different conditions and environments. Therefore, it is unreasonable to only unilaterally require medical personnel and hospitals to bear the burden of proof, and may have the adverse consequences of defensive medicine. Therefore, It is necessary to study the burden of proof in medical litigation in detail.

      "Production of evidence" refers to the litigation behavior performed by the parties in a civil lawsuit to present evidence to convince the judge about the facts. The "burden of proof" refers to the facts that are required by law. Even if the court exhausts all methods, it still cannot obtain the evidence and is in a state of confusion. In order to decide who of the two parties will suffer any disadvantage, it must decide who will bear the disadvantage. responsibility.

       Note: "If a party claims facts that are beneficial to itself, it has the burden of proving the facts. However, this does not apply if the law provides otherwise, or if it is unfair based on the circumstances." Article 227 of the Civil Procedure Law expressly states, It means that the parties have a claim, and the claim is beneficial to themselves, and they must provide evidence to support their claims. However, if the law does not provide for matters, the parties do not have to provide evidence, such as the situation in Articles 279 to 281 of the Civil Procedure Law. 

       Most say that in practice, the "classification theory of legal elements" is adopted for the distribution of the burden of proof, that is, the parties' rights claimed as the subject of litigation, the specific facts in the applicable substantive laws and regulations that meet the requirements for the occurrence of legal effects that are beneficial to them ( main facts), bear the burden of proof.

    The substantive legal relationship of civil medical malpractice can be roughly divided into contractual liability and tort liability. This article only explores the burden of proof for torts.

1. According to Article 277 of the Civil Procedure Law, in principle, the plaintiff shall bear the burden of proof that the defendant has intentional or negligent behavior and that there is a causal relationship.

2. However, according to the Supreme Court’s Civil Judgment No. 2014 in 2009, “Furthermore, doctors should immediately treat critical patients or take necessary measures in accordance with their professional abilities without unreasonable delay. Article 20 of the Physician Law Article 18 stipulates that the physician is obliged to provide treatment based on the protection of the patient. If the physician violates this obligation, he shall be deemed to have been negligent in accordance with the provisions of Article 184, Paragraph 2, of the Civil Code. Moreover, if the doctor fails to diagnose or follow up and confirm the test results, and fails to provide necessary medical treatment to the patient, resulting in the death of the patient, the relevant liability establishes a causal relationship, and it is difficult to expect the victim to be able to prove this. If the provisions of the first paragraph of Article 277 of the Civil Procedure Law are strictly observed, the victim will be unable to obtain due compensation, which is contrary to the principle of justice. Based on the balance of fairness and the principle of shifting the burden of proof, there is no considerable causal relationship. , that is, the burden of proof should be borne by the physician. "That is, if it is difficult to expect the victim to provide evidence, the burden of proof should be borne by the medical staff.

3. Finally, the Supreme Court’s 103 Taizi Civil Judgment No. 1311 states: “If the parties claim facts that are beneficial to themselves, they have the burden of proving the facts, but the law does not stipulate otherwise, or it is unfair based on the circumstances. This is not the case, as Article 277 of the Civil Procedure Law clearly stipulates that the above proviso was added when the law was amended on February 9, 1989, and originated from the distribution of civil burden of proof. It is complicated and only provides general provisions in principle, which cannot solve all the distribution problems of the burden of proof. In response to traditional and modern litigation types, especially the handling of public nuisance litigation, product manufacturer liability and medical disputes, such as Strictly adhering to the principles stipulated in this article will inevitably produce unfair results and prevent the victim from obtaining due relief, which is contrary to the principle of justice. When deciding whether to apply the fairness requirements stipulated in the proviso above, the court should consider the specific circumstances of each incident. Characteristics of the type of litigation and the nature of the facts sought to be proved, factors such as the inequality of abilities between the parties, the evidence being biased towards one party, the difficulty in collecting evidence, the difficulty in proving causality, and the unpreparedness of the law itself are taken into consideration to determine the burden of proof or whether to reduce the burden of proof. In addition, if the medical behavior is quite professional and the doctors and patients are not equal in terms of professional knowledge and evidence, the provisions of the preceding proviso should be applied. If it is obviously unfair for the patient to give evidence, the burden of proof should be reduced. , for the sake of equity, if the patient has a defect in diagnosis or treatment in medical treatment, and it is proved to the extent that the court's degree of proof reaches a reduced level, and it is convinced that the facts to be proved are true, it should be deemed to be complete. to the burden of proof.” In addition, the court may also consider whether the provisions of Article 277 of the Civil Procedure Law should be applied depending on the circumstances to reduce the burden of proof on the plaintiff, that is, the patient.