The supreme law shot "medical trouble" sharp weapon was abolished!

Author Yingfang Editor: The so-called "inversion of the burden of proof" refers to the provisions of the Supreme People's Court on the evidence of civil litigation in a number of provisions: the infringement litigation caused by medical acts, by the medical institutions on the medical behavior and the result of damage there is no causal relationship between the medical procedures and whether the medical process is at fault to bear the burden of proofIn layman's terms, the patient sues the hospital, and if the hospital cannot prove that it is not at fault for his medical behavior, it should be liable for compensationMedical care belongs to the high-risk industry, no matter how modern medicine develops, how the treatment means progress, medical fault is not completely avoidableMan is not a sage, can never, especially in the treatment of difficult and complex diseases, the doctor's every step of the treatment can be said to be as thin ice difficultCoupled with the current weak doctor-patient relationship, the projection of the lack of trust between doctors and patients, once the death or damage, medical litigation is inevitableOn May 1, 2020, the Supreme People's Court amended the "Several Provisions on Evidence in Civil Procedure" to formally remove the "inversion of the burden of proof" in medical litigation cases and make it a complete historyIn fact, the provision has become a "zombie clause" since the tort liability law was enacted on July 1, 2010, and has long since been discontinued in practiceThis revision is to further standardize the integration and consistency of laws and regulations, improve China's legal systemMedical damage dispute belongs to the civil dispute category, the parties to the facts to be confirmed by their claims according to the law has the obligation to present evidence, this is the "burden of proof." The basic principle of proof followed in civil litigation in china is "who claims, who gives evidence", if the parties can not put forward sufficient evidence to the facts of their claims, will bear the legal consequences of the evidence can not beIn June 1987, the Measures for the Treatment of Medical Accidents were introduced, and medical disputes required pre-procedures for the identification of medical accidents for a long time, but because the medical accident treatment method gave a one-time compensation rather than compensation, it was clearly unfair to the patient in terms of compensation costsAt the same time, due to the professional nature of medical behavior, the patient himself lack of medical knowledge, can not complete the evidence, from the point of view of the patient's favor, April 1, 2002 "The Supreme People's Court on the evidence of civil litigation" Article 4 clearly stated: "The medical institutions for medical acts and damage results between the absence of causality and the absence of medical fault to bear the burden of proof." "This provision opened a period of medical disputes "the burden of proof" period, during which there are many clear hospitals do not have responsibility, but because of the inability to prove their own medical behavior and the consequences of patient damage between the cause and effect of the phenomenon of losing the case, individual hospital doctors appear "defensive medical" phenomenon, because of fear of responsibility, the hospital appeared "picking patients" situation, to the escalation of the doctor-patient contradiction has brought a certain impactThe "tort liability law (draft)" in the first draft of the first draft has appeared in the "inversion of the burden of proof" provisions, but in the NPC Standing Committee discussion, because of the cause of medical damage is more complex, simply require medical personnel to bear the burden of proof is not conducive to the scientific development of medicine, and then this provision was deletedOn July 1, 2010, the Tort Liability Law came into effect, and the burden of proof in the case of medical litigation was clearly fault liability, that is, if the patient wanted to claim the liability of medical damage, it would first prove that the medical party had the damage act, that it had the consequences of the damage, and that there was a causal relationship between the damage and the consequences of the damageAs the legal effect of the Tort Liability Law is much higher than that of the Supreme People's Court on Evidence in Civil Procedure, the "inversion of the burden of proof" of medical fault acts, which has been applied since 2002, has become a history, and the inversion of the burden of proof on medical fault has long since ceased to be used in judicial practice, but it was not until May 1, 2020 that the Supreme People's Court officially deleted this "zombie clause", which is not an innovation or new provision, but rather to regulate laws, Integration and consistency between regulationsSome people once thought that the abolition of the burden of proof in medical disputes is a major setback in the administration of justice, hindering the rights of patients, but this is not the case, judicial practice, how do patients complete the proof of medical fault? For the plaintiff who does not have medical expertise can fully use the third party's authoritative appraisal to prove their claims, through the application for judicial appraisal to prove that the medical institution's medical treatment behavior is at fault, in the initiative to apply for judicial appraisal at the same time, the patient party is equivalent to complete the pre-procedure of proof, once the appraisal opinion determines that the medical side is at fault, then the burden of proof of the patient is completedAt present, China's relevant judicial identification work is also increasingly perfect, all over the medical damage identification work has clear rules, May 18, 2020, the Shanghai High Court has just issued "on the regulation of the city's court external commissioned identification workflow and time limit notice", but also further on the judicial identification process and time limits have been related provisionsAlthough the burden of proof has been removed, but the relevant responsibility of medical institutions and medical personnel has not been relaxed, article 58 of the Tort Liability Law stipulates that medical institutions because of concealment or refusal to provide medical records related to disputes or falsify, tamper with or destroy medical records to cause harm to patients, the medical institution is presumed to be at fault In judicial practice, after the patient puts forward the medical appraisal, the medical institution has the obligation to provide medical records, if the medical party because of tampering, forgery, concealment, destruction of medical records data leading to the integrity of medical records, authenticity defects, and thus lead to judicial identification can not be carried out, then in this case, the provisions of the law is directly presumed to be the fault of the medical side, the medical side will face high compensation In practice, the cases in which the court awarded high compensation because of the medical history of tampering are not in the few cases The Regulations on the Prevention and Treatment of Medical Disputes, which came into effect on October 1, 2018, further clarify: "Where a medical institution tampers with, forges, conceals or destroys medical records, the person in charge and other persons directly responsible shall be given or ordered by the competent department of health of the people's government at or above the county level to be given a disservice or dismissal from office, and the medical personnel concerned shall be ordered to suspend their practice activities for more than six months or less; The person in charge directly responsible and other persons directly responsible shall be given or ordered to be dismissed, and the medical personnel concerned shall have their practising certificate revoked by the original licensing department; if the crime is constituted, criminal responsibility shall be investigated according to law "The author has represented a case, a well-known Shanghai hospital after the death of the heart, after the electronic medical record data identification, the doctor after the death of the patient's medical record made a total of 76 changes, and the hospital mouth said that the change is in line with the relevant laws and regulations The agent then initiated administrative proceedings, and eventually the hospital and the doctor in question were found to be "falsifying medical records" and were subject to administrative penalties Subsequent due to the authenticity of the medical history is questionable, the judicial appraisal was returned by the Medical Association, resulting in the judicial appraisal can not be carried out, the results can be imagined To sum up, it is the relevant legal provisions on the burden of proof in medical disputes in our country's judicial practice, with the enhancement of citizens' legal consciousness, the increasing perfection of our legal system, the popularization of related medical liability insurance, the early intervention of third-party mediation institutions, the future medical dispute cases will become more rational and complete, to create a more harmonious environment for both doctors and patients, to build a system suitable for China's socio-economic development, to work together to overcome the common enemy of mankind - "disease".