Abstract
The article examines the procedural aspect of medical malpractice cases. It focuses on the differences in standards of proof by first explaining the characteristics of the Slovenian legal system and then comparing it with German and English legal systems. The author sheds light on the approach of the EU court on the question of the responsibility of the manufacturer for the product (vaccine) and suggests the direction to use a broader framework for the evaluation of evidence and presumptions. Given the disclosed problems of proving through the help of a medical expert, the article emphasizes the importance of respect for human rights in civil proceedings. Particular emphasis is also placed on no-fault systems and the question is raised of how the introduction of such a system into the Slovenian legal system would affect the perceived problem of proving a medical error and informed consent omission.
Highlights
According to Slovenian legislation, the liability of the health care professionals depends on the claimant‘s ability to allege and to prove that there has been a breach in the treatment contract
The Slovenian legal system found that a possible solution to this dilemma could be the so-called »softening« of the traditional rules on the standards of proof. This involves a different process in medical malpractice cases, designed to facilitate the patient's position as an injured party, and in realization that the patient is the weaker party in the relationship
In a malpractice setting, for a hypothetical finding, it must be sufficient for the patient to assert and prove that the conduct of the medical professional would have led to a different result
Summary
According to Slovenian legislation, the liability of the health care professionals depends on the claimant‘s ability to allege and to prove that there has been a breach in the treatment contract. It is extremely challenging to determine the cause of existing conditions and the facts, related to the omission of due diligence, through which advanced technology and very complex processes related to the medical treatment raise the risk of possible future damage Another difficulty is reflected in the informational and professional deficits the patient has in relation to the health care institution. The Slovenian legal system found that a possible solution to this dilemma could be the so-called »softening« of the traditional rules on the standards of proof This involves a different process in medical malpractice cases, designed to facilitate the patient's position as an injured party, and in realization that the patient is the weaker party in the relationship. Certain measures have been taken in the substantive field, in particular by establishing rules on the reverse burden of proof, as well as by simplifying the procedure necessary to establish causation (Žnidaršič Skubic, 2018)
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