医疗行为侵权诉讼举证责任分配之探讨

On Proof Liability Allocation in Medical Suits

《证据规定》确定由医疗机构就医疗行为不存在医疗过错以及医疗行为与损害不存在因果关系承担举证责任,表面上看似有利于维护患者的利益,但是却欠缺其制度设计应有的合理性。《侵权责任法》虽然确立医疗行为侵权实行过错责任原则,但就举证责任如何分配并未明确予以规定。

The relevant law stipulates that medical institutions are to provide proof in case a medical institution does not have any medical faults and its medical acts do not have a causal relationship with any harm. It seems that this safeguards the patients＇ interest, but it lacks the rationality it should have in designing the system. The tort law makes clear the fault liability principle on the part of the medical institutions, but fails to specify how to allocate the proof liability. To root the problem, the palintiff takes the proof liability in terms of any medical faults and the causal relations between a medical act and any harm.