How to resolve medical malpractice disputes, and who will provide evidence in medical malpractice di

Medical disputes are civil disputes. In civil dispute cases, if a party fails to provide evidence or the evidence is insufficient to prove its factual assertion before a judgment is rendered, the party who bears the burden of proof shall bear the adverse consequences.

1. In the event of a medical dispute, immediately request the hospital to seal the medical records and preserve the evidence.

2. Find a professional to analyze the entire process, focusing on confirming whether there is medical fault in the process.

3. Analyze whether the medical fault causes the patient's damage, and whether there is an inevitable causal relationship between the medical fault and the patient's damage.

4. Calculate the amount of compensation claimed according to the fault and damage.

5. If the amount of medical dispute is small, it can be resolved directly with the hospital, and the case with a large amount of compensation can be resolved through negotiation with the local medical commission or directly to the local court where the medical dispute occurs!

6. Articles 4 and 8 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings: In tort litigation arising from medical acts, the medical institution shall bear the burden of proof that there is no causal relationship between the medical act and the result of the damage and that there is no medical fault. Many people will think that the law is too good for us and that we will definitely win the case!

In fact, the special complexity of medicine determines that it is far from being as simple as the patient thinks, and in the medical malpractice litigation, the patient is facing the medical experts and the best legal counsel and lawyers. It is easy for the doctor to give a plausible explanation from a medical and legal point of view, and the burden of proof has shifted. This requires the patient to come up with professional conclusive evidence to refute the hospital's point of view, and if he fails to produce evidence, he will face losing the case, so professional medical and legal support is indispensable in the process of resolving medical disputes!

The presentation of evidence in medical disputes requires patients to provide evidence to prove the facts of the visit, the consequences of the damage and the degree of damage, such as ** certificates, receipts, outpatient medical records, hospitalization records, temperature sheets, doctor's orders, laboratory test sheets, medical imaging examination materials, special examination consent, surgical consent, surgical and anesthesia records, pathological data, nursing records, and appraisal reports.

[Legal basis].

Article 1222 of the Civil Code: In any of the following circumstances, the medical institution shall be presumed to be at fault if a patient suffers harm in the course of diagnosis and treatment: (1) violating laws, administrative regulations, rules, and other provisions related to diagnosis and treatment norms; (2) Concealing or refusing to provide medical records related to the dispute; (3) Loss, falsification, alteration, or unlawful destruction of medical records. Article 1225:Medical establishments and their medical personnel shall fill out and properly keep medical records such as hospitalization records, doctor's orders, examination reports, surgical and anesthesia records, pathological data, and nursing records in accordance with regulations.

Where patients request to review or reproduce the medical records provided for in the preceding paragraph, the medical establishments shall promptly provide them.

Medical Malpractice Liability Dispute Burden of Proof: 1) Burden of proof on the victim (patient or his legal person)In tort litigation arising from medical acts, the victim shall bear the burden of proof on the fact that he has suffered damage and the fact that he has received medical treatment. Damage includes damage to the life and health of the patient, damage to the property of the patient and his relatives, and mental damage.

The fact of receiving medical treatment can be proved through medical procedures such as ** and payment of fees. (2) The burden of proof on medical institutions refers to hospitals or medical and health technicians at all levels and types approved or recognized by health administrative organs. In tort litigation arising from medical acts, medical institutions shall bear the following burden of proof:

1. There is no causal relationship between the patient's damage and the medical treatment of the medical institution. The causal relationship in tort liability refers to the causal relationship between the illegal act and the result of the damage. In most cases, the causal link between the medical act and the patient's injury is clear.

However, in some difficult and complex medical disputes, the causal relationship can only be determined after a special technical appraisal. 2. There is no medical fault in the medical institution. If a medical institution wants to exempt itself from tort liability, it must prove that there is no medical fault in the process of diagnosis and treatment.

Some scholars have already made some explorations and studies in this regard, which are worthy of reference and reference. That is, the way for a medical institution to prove that it is not at fault is as follows: (1) The result of the damage is a medical accident.

Medical malpractice refers to the harmful consequences caused by unforeseen causes of the medical institution or the medical institution is truly unable to avoid the medical damage result; (2) There are unforeseen complications. Such "complications" must be unforeseen and unavoidable in order to be exempt from liability; (3) Patients and their families do not cooperate**. If the non-cooperation of the patient and his or her family is the entire cause of the damage, the medical institution may be exempted from liability for compensation; If the failure of the patient and his or her family to cooperate** is only one of the reasons for the occurrence of the consequences of the damage, and the medical institution is also negligent, the responsibility shall be shared by both parties in accordance with the principle of offsetting the fault.

Article 4 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings.

Legal Analysis: The patient bears the burden of proof. Patients shall submit evidence of the medical establishment's treatment and harm, and if they are unable to submit evidence that the medical institution or its medical personnel are at fault or that there is a causal relationship between the diagnosis and treatment and the injury, they may apply for an appraisal of the medical injury in accordance with law.

Legal basis: Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Liability for Medical Damages

Article 4: Where patients claim that a medical institution bears liability for compensation in accordance with article 1218 of the Civil Code, they shall submit evidence of the medical institution's treatment and harms.

Where patients are unable to submit evidence that the medical establishment or its medical personnel are at fault, or that there is a causal relationship between the conduct of diagnosis and treatment, and the damage and search, and submit an application for evaluation of medical damages in accordance with law, the people's court shall permit it.

Where medical establishments assert that they are not liable, they shall bear the burden of proof on the circumstances provided for in the first paragraph of Article 1224 of the Civil Code and other reasons for the defense.

Legal basis: Civil Code of the People's Republic of China

Article 1222: In any of the following circumstances, the medical institution is presumed to be at fault if a patient suffers harm in the course of diagnosis and treatment:

1) Violating laws, administrative regulations, rules, and other provisions related to diagnosis and treatment norms;

(2) Concealing or refusing to provide medical records related to the dispute;

(3) Loss, falsification, alteration, or unlawful destruction of medical records.

In tort lawsuits arising from medical acts, the medical institution bears the burden of proving that there is no causal relationship between the medical act and the result of the damage caused by the hailstorm and whether the medical process was at fault. This is contrary to the general principle of "whoever asserts the claim shall bear the burden of proof" in the Civil Procedure Law, that is, the burden of proof shall be borne by the other party for the claim made by one party. This is what is commonly called"The burden of proof has long been reversed"。

In other words, the medical institution bears the burden of proof that there is no causal relationship between the medical act and the harmful consequences and that there is no fault; The patient must prove the fact that he or she has been treated at the medical institution and provide evidence of his or her own injury; Patients are also required to provide evidence of the results of the impairment. Legal basis: Article 4 (8) of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings In tort litigation arising from medical acts, the medical institution shall bear the burden of proof that there is no causal relationship between the medical act and the result of the damage and that there is no medical fault.

How to present evidence in medical malpractice litigation: In China, the general principle of the allocation of the burden of proof is "whoever asserts the claim shall provide evidence" (Article 64 of the Civil Procedure Law), but in special circumstances, it is necessary to implement the reversal of the burden of proof. For medical disputes, the reversal of the burden of proof has become the core of proof in medical disputes.

1) The affected party as the plaintiff shall generally provide the following supporting materials:

1. Evidence to prove that you are a qualified plaintiff, such as proof of identity, proof of continuing or kinship, etc.

2. Evidence to prove the existence of a medical service contract relationship with a medical institution, such as **, payment bills, outpatient manuals, etc.

3. Evidence to prove that the life or health of the patient has been damaged, such as medical certificate of death, autopsy report, disability appraisal conclusion, etc. In addition, if there is no medical record file for outpatient or emergency patients in a medical institution, the patient should provide the corresponding medical record information, except for the emergency case data of the critically ill patient.

2) The medical institution as the defendant shall generally provide the following supporting materials.

1. Evidence proving that medical institutions and relevant medical personnel have legal practice qualifications, such as "Medical Institution Practice License", "Medical Practitioner Practice Certificate", etc.

2. The patient's medical records, including:

1) Medical records such as inpatient disease course records, death case discussion records, difficult case discussion records, consultation opinions, and ward rounds records of senior physicians;

2) Medical records such as hospitalization records, body temperature sheets, doctor's orders, laboratory test sheets (test reports), medical imaging examination data, special examination consent forms, surgical consent forms, surgical and anesthesia records, pathological data, nursing records, etc.;

3) Rescuing critically ill patients includes rescuing critically ill patients who have not established medical records in medical institutions, and supplementing medical records within the specified time;

4) The parties shall seal and retain the physical objects such as infusion, blood, drugs, injections and drug administration supplies, or the inspection reports made by these physical objects in accordance with the law;

5) Medical records of outpatient and emergency patients with medical records in medical institutions;

6) Other materials related to the technical appraisal of medical malpractice.

3. Medical and health laws, administrative regulations, various rules and regulations formulated by medical and health administrative departments, diagnosis and treatment routines, technical operation specifications, disease diagnosis and treatment guidelines related to specific medical disputes, etc.

4. Evidence that can prove that the damage is a medical accident, that there are unforeseen complications, or that the patient and his family are not worthy of pure understanding.

5. In the case that it is unclear whether there is medical fault and whether there is a causal relationship between the medical act and the result of the injury and there is insufficient evidence, the medical institution shall submit an application for appraisal in accordance with the law and initiate the appraisal procedure. The above is the evidence presented in medical malpractice litigation.