Chapter 7 of the Tort Liability Law of the People's Republic of China (hereinafter referred to as the Tort Liability Law), which came into effect in July 2010, specifically stipulates liability for medical damage. Article 54 of the Tort Liability Law, which ranks first in this chapter, clearly stipulates the constituent elements of medical damage liability, that is, “If a patient is harmed during diagnosis and treatment activities, and the medical institution and its medical staff are at fault, >
It can be seen from the above provisions that the constitution of medical damage liability is inseparable from three aspects: the fact of damage, causation and fault. Among them, the fact of damage and causation are objective elements, and fault is the subjective element. Relationship is an indispensable element for any tort liability, also known as core element and necessary element. Even for special tort liability such as "high danger" and "environmental pollution", it is impossible to discuss liability for medical damages without the fact of damage and causal relationship. As a general tort liability, it can only be established when the two constituent elements of damage fact and causal relationship are not established, and fault must also be present. Therefore, in theory, the principle of liability for medical damage compensation is also called the principle of fault liability, that is, There is liability if there is fault, but there is no liability if there is no fault. However, it should be noted that the fault mentioned here refers to the fault that combines the fact of damage and causation. Without the fact of damage and causation, fault alone does not constitute medical damage. Liability for compensation.
Second, the burden of proof for medical damage liability.
It is a recognized rule of proof in the legal field that there is a corresponding burden of proof according to the principle of liability. Since the principle of attribution of medical damage liability is the principle of fault, medical damage lawsuits are often initiated by patients taking the medical provider to court. According to the principle of whoever claims the responsibility, the burden of proof is of course the patient, not the medical provider. Even in accordance with the provisions of Article 58 of the Tort Liability Law, when it is presumed that a medical institution is at fault due to "violation of laws, administrative regulations, rules and other relevant medical standards", the medical party only bears the burden of proving that there is no fault, and does not include failure to do so. The burden of proof of causation. If this is an inversion of the burden of proof, it may be regarded as a conditional inversion, that is, an inversion with a legal presumption of fault, rather than an unconditional inversion.
However, due to the 2002 4 Article 4 of the "Regulations of the Supreme People's Court on Evidence in Civil Litigation" (hereinafter referred to as the "Evidence Rules"), which came into effect on March 1, divides the burden of proof for medical infringement into patent infringement litigation, highly hazardous operation infringement litigation, and environmental pollution damage compensation. Litigation and other special tort litigation, item (8) of this article stipulates that "in tort litigation caused by medical behavior, medical institutions bear the burden of proof that there is no causal relationship between the medical behavior and the damage results and medical negligence, which makes both the theoretical and practical circles Some people adhere to the above evidence rules and believe that the burden of proof for medical damages is reversed. They believe that medical institutions not only bear the burden of proof for the absence of causation in medical damage compensation lawsuits, but also bear the burden of proof for the absence of causation. Some judges and lawyers even regard this as common sense among legal professionals, as if they cannot do it unless they think so. In fact, it can be seen from the provisions of Article 6, Paragraph 2 and Article 58 of the Tort Liability Law that even if a medical institution is presumed to be at fault, it only bears the burden of proof of no fault and does not include the burden of proof of causation. The rules of evidence require doctors to unconditionally bear the burden of proving no fault and causality, which obviously conflicts with tort liability law. The rules of evidence belong to the judicial interpretations promulgated by the Supreme Court earlier, and the tort liability law belongs to the newly promulgated laws. When evidence rules conflict with tort liability law, tort liability law shall take precedence. Therefore, under normal circumstances, the burden of proof for medical damage liability lies with the patient, not the doctor. Even if the doctor is presumed to be at fault, the doctor's burden of proof is limited to the burden of proof that there is no fault, and does not include the burden of proof that there is no causal relationship.
Third, the status and role of expert opinions in the determination of liability for medical damage compensation.
In this sense, statements and defenses during the appraisal process are not only inferior to those in court trials, but also more important. If the appraisal opinion is unfavorable to oneself, it is necessary to find out the problems in the appraisal opinion, such as only the appraisal opinion without analytical explanation, or there is a conflict between the appraisal opinion and the analysis explanation, and apply for re-appraisal in a timely manner. If you cannot overturn the appraisal opinion that is unfavorable to you by filing a re-appraisal, you should also apply for the appraiser to appear in court for questioning based on the problems existing in the appraisal before the trial, recognize the judge's own views to the maximum extent, and make a decision that is beneficial to you to a certain extent. judgment.
To sum up, as a general personal injury compensation case, there is no essential difference between medical damage compensation and general personal injury compensation cases in terms of constituent elements and liability attribution principles. However, medical issues are highly professional, and disputes caused by medical issues require professional judgment. Most patients do not have relevant professional knowledge and cannot judge whether the medical party constitutes medical infringement. Although doctors have certain professional knowledge, due to their position as litigants, it is difficult to ensure the fairness of their judgments. Therefore, using appraisal to determine whether medical damage liability is established has become an inevitable choice for both doctors and patients and a common method for judges. The status and role of appraisal opinions in medical litigation has suddenly become prominent. Therefore, although expert opinions are initially just medical judgments in medical litigation, they cannot directly replace the judge's judicial judgment. However, since most judges, like lawyers, do not have medical expertise, they can make decisions based on expert opinions. So, if you look at expert opinion solely from the perspective of winning your case, its importance cannot be overstated. As a lawyer participating in medical damage compensation litigation, it is very important to choose the timing and method of appraisal based on the agent's interests, promptly put forward opinions that are beneficial to one's side, question the opinions that are not beneficial to one's side in a targeted manner, and apply for re-appraisal. This is the original intention of the author in writing this article. I hope colleagues will criticize and correct me.