Is the burden of proof really no longer inverted

Is the burden of proof really no longer inverted
Staff reporter Kong LingMin Zhang CanCan
On October 27, the Standing Committee of the National People's Congress reviewed the law draft of the liability for tort for the third time, and deleted in the draft relevant medical treatment damage responsibility and put the regulation inverted to the proofed.
It must use once liability for tort law through,it is it invert to stipulate whether become by past tense to perplex by medical personnel malpractice burden of proof for many years? If has cancelled and inverted to the burden of proof of the malpractice, how to safeguard patients' rights and interests?
Where is burden of proof inverted from to come
Cure the intersection of SCTE and the intersection of legal affairs portion and the intersection of director and Deng LiQiang introduction according to China, until doctors and patients' dispute increase, the patient collects evidence doctors and patients' dispute particularity such as being difficult appears, in order to protect patient's rights and interests, the Supreme People's Court has implemented " several regulations about the civil Evidence in Litigation of the Supreme People's Court " since April 1, 2002, among them article 4 stipulates: Caused by medical behavior the intersection of infringement and lawsuit, seek medical advice, treat behavior and damage, have causality and have medical fault undertake burden of proof between the result by medical organization. This judicial explanation is that the medical organization bears the only origin that the burden of proof inverts in the lawsuit of infringing. Do not have a relevant content in " general rule of the civil law " and " medical crash handling regulations " which the State Council issues which National People's Congress makes.
Why clause of deleting the burden of proof to invert
According to the introduction of Deng LiQiang, in the first trial manuscript of the law draft of the liability for tort, have made 12 regulations together to the medical liability for tort. Among them article 53 is an overall regulation, the content is: The patient is damaged in the activity of making a diagnosis, the medical worker has fault, should bear compensation responsibility. The clear medical treatment of this regulation infringes and is applicable to responsibility principle of the fault, who it's time " to maintain who puts to the proof " . This comes down in a continuous line with relevant regulation of " general rule of the civil law " too.
Deng LiQiang thinks, considers the difficulty that the patient puts to the proof, National People's Congress is in the course of making the draft, on the premise of article 53, have proposed article 58 and article 59 as supplementing. Among them article 59 stipulates: The patient's damage may be caused by the behavior of making a diagnosis of the medical worker, unless medical worker can offer opposite evidence, infer, should make a diagnosis behavior with patient store causality in damage.
LiQiang Deng think because article 59 give too large right of cutting out etc. freely of court, stipulate too fuzzy and extensive, so in the course of using, probably cause the burden of proof to invert. Cure the SCTE to China when the employer's organization solicit the opinion in National People's Congress through Ministry of Public Health, a lot of medical worker and the intersection of hygiene and the intersection of law and worker think regulation of article 59 make great principle of article 53 timid to take probably, propose cancelling. So, in the law draft of liability for tort which National People's Congress examines in three, have left out the content of article 59 this time. But delete the relevant content of the law of liability for tort, does not mean that revises the judicial explanation that supreme people's court made in 2002.
The burden of proof no longer inverts and depends on something
As to why want, delete article 59, to interpret as Law Committee of the National People's Congress: Some experts propose, the causality put forward in this string proves the rule can be solved by the evidence system of the civil procedure, this law needn't make the regulation.
Then, what regulations does the evidence system of " civil procedure " have?Deng LiQiang says, there is no medical responsibility to put the relevant regulation inverted to the proof in the civil procedure, but the Supreme People's Court has made stipulations in judicial explanation. If understand this judicial explanation it is part of civil procedure, then may be known and continued inverting the burden of proof in bringing a case to court and telling the course of the malpractice.
"Liability for tort law and civil procedure two of different nature law. " LiQiang Deng emphasize liability for tort law substantive law, it stipulate what rights and interests of citizen how offer, relieve should receive protection and rights and interests of law, encroach on; The civil procedure is a procedure law, it is mainly for the lawsuit procedure to make stipulations. Procedure law is the guarantee of the substantive law, the substantive law is the most basic regulation. So, the civil procedure is an assistant guaranteeing the law of liability for tort can be carried out, make clear regulation as substantive law, procedure law should make corresponding adjustment.
Meanwhile, Deng LiQiang thinks, the law of liability for tort is as the law, its effectiveness is higher than judicial explanation. After the law of liability for tort is issued formally, if the Supreme People's Court does not revise this judicial explanation, then the intersection of liability for tort and law and to will produce the obvious conflict between the judicial explanation that civil procedure make supreme people's court. "We hope supreme people's court make prompt explanation or revision. "
The association of Chinese hospital safeguards the rights Deputy Director of the department Zheng XueQian says, in formulation of the law draft of the liability for tort, National People's Congress and supreme people's court have been keeping the close communication all the time, supreme people's court has been paying close attention to this question.
Professor Sun DongDong of law school of Peking University thinks, this judicial explanation which the Supreme Judicial Court made, proposed an implementing regulation to the question of burden of proof in the civil procedure. The law of liability for tort and civil procedure range that these two laws are administered are different, so, even infringe law and has not stipulated the burden of proof is inverted, can not get rid of in the lawsuit of the medical dispute either, the court will still use the burden of proof to invert according to the civil procedure. It the key is to see by liability for tort law through after,last new judicial explanation or revise the Supreme People's Court.
Does not the hospital put to the proof to cancel the burden of proof and invert
Zheng XueQian thinks, the law draft of the liability for tort has no clause that burden of proof inverted. The patient will not merely prove it and there is relationship between doctors and patients between the hospitals while litigating, the ones that proved the hospital made a diagnosis the activity has caused injury, will cause the causality of the injury to propose proving to the hospital to it at the same time. If he can not prove, can demand to carry on judicial expertise. Later, the expert judged whether the hospital had fault according to appraising the result, if judge the hospital is mistaken, the hospital can produce evidence not to have by mistake oneself in order to prove. So, it doesn't represent the hospital no longer puts to the proof to cancel the burden of proof and invert.
Zheng XueQian says, doctors and patients both sides put to the proof, help to solve the problem that a lot of hospitals can not collect evidence smoothly. For example, on condition that invert in burden of proof, as patient's death, the hospital demands to carry on autopsy, but relatives disagree, the hospital can only be declared mistaken on condition that can't collect evidence. But the cross-examination of both sides helps to suffer from and then cooperate with the corpse to examine, promote doctors and patients to be harmonious, and solve the medical dispute more objectively and just.
The director of office of relationship between doctors and patients of Chinese-Japan Friendship Hospital of Ministry of Public Health has celebrated thinking, while restraining a doctor behaviorally, how right to protect the doctor should be brought into schedule too.
Will the patient's rights and interests guarantee be weakened
If supreme people's court makes revision to relevant judicial explanation, in the medical dispute in the future, what guarantee are the rights and interests of the patient difficult to put to the proof? LiQiang Deng say, consider it is difficult for patient to put to the proof, make the following regulation in infringing the intersection of law and article 58 of draft. There is one of the following situations, infer a medical worker has fault: Violate the health care and manage law, administrative statute, rule, norm of making a diagnosis; Hide or refuse to offer medical copy clerk and relevant materials related to dispute; Forge, destroy medical document and relevant materials.
The Deputy Director of office of relationship between doctors and patients of Chinese-Japan Friendship Hospital of Ministry of Public Health offers hydrogen and is thought in the field, even under the condition that the burden of proof inverts, the patient wants corresponding bearing the burden of proof. So the public should not think that cancel the interests that this regulation will damage the patient.
Field offer hydrogen think the specific medical worker violates the norm of making a diagnosis, the ones that did harm to patient should add and punish severely even. But not realizing clear question and existing technological means to medical science yet, the question that can't overcome should be treated with a certain discrimination, can consider setting up and succouring the mechanism, reduce the patient's losses.
The emergency call head of the department Yu XueZhong of BJ Union Hospital thinks, it means the patient will be in absolutely weak status to cancel the burden of proof, because the doctor's medical behavior must be in accordance with relevant regulations such as existing laws and regulations and medical attendance routine,etc..
Will behavioral restraint to medical treatment be weakened
A lot of people are anxious, because doctors and patients do not have reciprocal information, once cancel the burden of proof and invert this " inhibition " ,Be weakened doctor's behavioral restraint? As to this, management college associate professor Tao HongBing thinks the medical and health of medical college of Tongji University of Central China University of Science and Technology, start with improving the system mechanism, strengthen the management inside the hospital, strengthen the supervision of the hospital, behavior of making a diagnosis of standardizing the medical worker developing simultaneously by many schemes.
Tao HongBing thinks, the medical organization will improve the information announcement system of medical care, many health authorities all begin information such as single number medical care expenses, mortality, patient's satisfaction of announcement in recent years, this is a good beginning. But medical information is open and clear but also more and letting ordinary people obtain accurate medical information more completely, which disease which treatment of medical organization is known to in what level, see the doctor clearly.
Tao HongBing proposes, should strengthen social supervision mechanism, increase the restraint of the hospital, make a suggestion for the hospital regularly, supervise a doctor making great prescription, excessive inspection. From this year, Ministry of Public Health tries hard to recommend the clinical route, makes a set of norms of making a diagnosis for common disease, frequently-occurring disease, simple disease, for improve medical quality, reduce medical risk, raise patient's satisfaction, have sure function this.
Want the unreasonable performance examination mechanism inside hospitals of the practical reform, he thinks, the current performance examination mechanism puts economic benefits first, in fact just encourage creating income, have increased the medical expenses of the patient to bear, is unfavorable to building the harmonious relationship between doctors and patients.
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