Abstract
Introduction: in medical malpractice cases, patients (plaintiffs) or their relatives face serious obstacles in proving the conditions of liability of the health care provider: the fact of a medical error, the harm to health, and the causal link. The inherent informational inequality between the parties (a professional subject v. an ordinary person) and the limited accessibility of medical records (potential evidence) for the patient encourage the lawmakers and factfinders to deviate from the traditional formula for allocating the burden of proof. Purpose: to identify general trends in the development of judicial practice in medical disputes in Russia, Belarus, and the EU member states; to assess the prospects for the use in Russia and Belarus of evidence- based approaches developed by foreign legal doctrine to better protect patients’ rights. Methods: the authors use the comparative legal research method when dealing with the legislation, case law, and the legal doctrine of Russia, Belarus, the EU member states and other countries. Results: we have formulated a number of proposals for Russian and Belarusian jurisprudence based on international experience: to use the outcome criterion in assessing the quality of routine medical treatments and interventions (Fr. – obligation de résultat); to interpret any defects in medical records (incomplete information, unspecified corrections, etc.) in favor of the patient; to lower the standard of proof when proving the causal link to the preponderance of probabilities.
Highlights
The inherent informational inequality of the disputing parties and the vulnerable position of the plaintiff dictate the need to deviate from the traditional allocation of the burden of proof
There is a trend in European doctrine to shift the burden of proof from the patient to the healthcare provider, including by extending the rules on contractual liability to the relationship between the patient and the doctor, allowing claims against both the doctor and the healthcare provider to be joined in a single action[2]
There are often proposals to deviate from this traditional approach to allocating the burden of proof, referring to the informational and economic inequality of the parties[2], but no concrete steps in this direction have been taken by the legislator so far
Summary
Medicine is not perfect and, not always harmless. Disputes between patients and medical organizations over the quality of medical care provided and the possibility of avoiding complications, including death, are increasingly becoming the subject of judicial review. The inherent informational inequality of the disputing parties and the vulnerable position of the plaintiff (patient) dictate the need to deviate from the traditional allocation of the burden of proof. This problem is, to varying degrees, common to the Кратенко М. Относительная новизна медицинских споров для России и Беларуси позволяет присмотреться к тенденциям в законодательстве и правоприменительной практике стран – членов Евросоюза и других государств, критически оценить разработанные зарубежными коллегами доказательственные доктрины в пользу пациента, высказать предложения «за» или «против» их использования российскими и белорусскими судами
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