Research on Presumption of Fault in Medical Litigation in China

Abstract

The legal presumption of medical fault in Chinese law has been controversial since its promulgation. The focus of academic debate focuses on whether the behavior that violates the legal norms and diagnostic and therapeutic norms is the standard of fault identification or the precondition of fault presumption. To solve the dispute, we must first clarify the applicable premise of the legal presumption of medical fault. According to the logic of law application, medical fault is not a fact that can be directly proved by evidence, but a legal evaluation. The existence of medical fault elements should be independently evaluated by the judge. However, the problem in China's medical litigation is that the application of the legal presumption of medical fault deviates from the applicable logic that should be followed. The problem at the legislative level is that medical fault should not be regulated by legal presumption, and the legal presumption and fault presumption were confused at the beginning of legislation.
 Based on this, in China's medical litigation, it is necessary to distinguish between the medical fault of medical institutions and the fault that hinders the investigation of facts. If the medical institution forges medical records and refuses to provide medical records, which makes it difficult for the court to find out whether the medical institution's diagnosis and treatment activities, diagnosis and treatment behaviors cause damage and the size of the damage, then the medical institution should be directly made to bear the adverse consequences of proving the obstruction, that is, bear the responsibility commensurate with the degree of fault that hinders the investigation of the facts. As for the medical fault, it should be judged by the judge according to the diagnosis and treatment activities of the medical institution. The behavior of medical institutions in violation of diagnosis and treatment norms and legal norms is the basis and factor for judges to comprehensively judge whether there is medical fault. The fact based on which to evaluate whether the fault exists or not is the object of the parties' proof.