A Study on the Burden of Proof in Medical Malpractice Disputes--Focusing on Recent Supreme Court Decisions

• Main Authors: Tien, Hong Yih, 田鴻毅
• Other Authors: 許政賢
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/5d77ms

碩士 === 國立政治大學 === 法學院碩士在職專班 === 104 === Because of medical treatment to lead to the fact unfortunately that the patient dies, wounded, have it from ancient times, every country will happen, not just the existing problem now. The medical malpracticecase that reveals of the news media in recent years is observed in our country, the origin cause of formation of the dispute takes place in medical treatment, do not mostly look forward to as the patient or the relative on the result of treatment.According to recent 154 cases about court decisions, the study try to find a better way improving the problems between the doctors and the patients. The study firstly illuminates the civil code requirement basis of the medical lawsuits, and then treats the reversal issue of legislative burden of proof. It further discusses about the theory of burden of proof as well as the explanation and application of the article 277 of Taiwan Code of Civil Procedure. Afterwards, it establishes the general guideline of the allocation of burden of proof. The medical lawsuits are very unique compared with lawsuits of other kinds. If the responsibility attribution of burden of proof, which comes out from the general guideline of the allocation of burden of proof, is not anticipated by one party, the court must make an adjustment. It is in the distribution of the burden of proof of the civil action, regulation that the civil procedure tell article 277 of the law exists in Taiwan. However, it still exists doubt about the distribution rule of this civil burden of proof, whether can balance the doctor and patient to assign in the burden of proof of the medical lawsuit. The thesis claims that the adjustment of allocation of burden of proof should be regarded as lessening the burden of proof more than as transferring the burden of proof. The transfer of the burden of proof should not be applied unless there are any facts as significant medical defects, violation of duty of disclosure, destroying or hiding a piece of evidence. Transfer of the burden of proof will make a great impact and easily causes a doctor to take the duty of result for the medical action. It will make tense relation between the doctors and patients while practically changing the allocation of burden of proof of civil code. It is indicated in the thesis that when considering lessening the burden of proof, the cases should apply to the doctrine of res ipsa loquitur, doctrine of appearance proof, destroying or hiding a piece of evidence or doctrine of informed consent by referring to legislative cases and court practice of other countries. It will make balance between the parties of medical lawsuits and resolve the conflict between doctors and patients.