Study on the rule of law丨The development of the burden of proof mitigation system in medical litigation in Germany

The burden of proving causation is a matter of great concern in medical litigation in Germany, and due to the complexity and professionalism of medical acts, it is often difficult for patients to prove the causal link between medical acts and the outcome of damages. Based on the consideration of fairness, justice and the principle of equality in litigation, Germany has gradually improved the system of mitigating the burden of proof in the practice of medical litigation, and alleviates the dilemma of proving causation by means of "easing the burden of proof". Under the relaxed burden of proof system, in principle, the burden of proof of causation is still borne by the plaintiff, but in certain circumstances, the burden of proof on the plaintiff will be reduced or even transformed, and if the judge makes a comprehensive judgment that the causal relationship is established, then the medical institution needs to bear the burden of proving that the causal relationship does not exist.

Application and development of the burden mitigation system

The German system of easing the burden of proof has been widely used in judicial practice, which is influenced by the common law rule of "self-proof of facts", and has been continuously used in the litigation of medical tort disputes, gradually forming the rule of "prima facie proof". Initially, this rule was only applicable to situations where it was difficult for the victim to provide evidence to prove the negligence of the infringer in tort damages disputes, but its application has gradually expanded to cover the issue of proving the existence of a causal relationship.

However, in order to deal with the fact that the traditional allocation of the burden of proof may produce unfair results in some special circumstances, Germany has developed the theory of reversal of the burden of proof for major medical defects, impediment of proof and area of danger, which provides a more reasonable and fair solution to the allocation of the burden of proof in special cases of medical litigation. In addition, the German doctrine of apparent proof later greatly influenced the development of the Japanese theory of "approximate presumption", which also aimed to reduce the burden of proof on the plaintiff in specific circumstances.

Apparent Attestation Applies in the Proof Rule

In the German system of reducing the burden of proof of causation in medical litigation, prima facie proof specifically refers to the judge's direct presumption of the existence of a specific typical result based on the rule of thumb for the "typical course of events" without excluding other possibilities. Among them, "typical events", also known as "stereotyped events", refer to the fact that based on general life experience, even if the specific circumstances of individual facts are not explained in detail, it can be temporarily considered that an event has occurred that does not contradict such individual facts. However, the application of apparent proof still needs to meet certain conditions and be subject to certain restrictions, and in specific cases, the court will make a comprehensive judgment based on the circumstances and evidence of each case to determine whether the rule of prima facie proof applies. In addition, prima facie proof is not equivalent to the principle of "self-proof of facts" or "self-evidentness", and its presumed conclusion is not absolutely reliable, and it still needs to be comprehensively judged in combination with other evidence. The application of the theory of apparent proof aims to achieve fairness and reasonableness in individual cases, improve judicial efficiency, and promote the progress and development of the law.

There are different controversies about the nature of apparent proof, and the main ones are as follows. One is to prove the evaluation theory. This doctrine regards apparent proof as the judge's evaluation of the "typical incident" asserted by the parties, that is, the judge assigns a certain probative evaluation to the "typical incidental experience" asserted by the parties according to the degree of proof according to the rule of thumb. This doctrine combines the principle of apparent proof with the principle of free will, and holds that apparent proof is a form of expression of the judge's free will, and the proof of causality not only includes simple factual cognition, but also involves value judgment. The second is the standard of proof. The doctrine sees apparent proof as a way to lower the standard of proof, with the ultimate aim of avoiding factual ambiguity by lowering the probabilities required for proof. Even if there is no "stereotyped course of events", apparent proof of causation can be applied. The third is the doctrine of substantive law. The essence of this doctrine is that judges change the elements of substantive law by implicitly, so as to amend and adjust the norms of substantive law with limitations, so as to achieve the fairness and reasonableness of individual cases.

The nature of apparent proof is viewed differently by various theories. The most representative is the "evidence evaluation theory", which is the judge's evaluation of the specific facts asserted by the parties, and its significance is to solve the problem of judging the value of evidence, so as to balance the rights and interests of both parties and achieve ultimate fairness and justice. However, no matter which point of view, it is inseparable from the application of the rule of thumb and the grasp of the degree of proof, through which the application of the rule of thumb helps judges to presume unknown facts based on known facts, so as to reduce the difficulty of proof and improve judicial efficiency.

Other rules in the Burden of Proof Mitigation System

Apparent proof plays an important role in litigation as an important part of the German system of reducing the burden of proof of causation in medical litigation, however, in some special cases, apparent proof may not be applicable. In response to these special circumstances, the German system of burden of proof mitigation has developed other rules, including the reversal of the burden of proof for major medical defects, the impediment of proof, and the area of danger theory, which are based on different situations and aim to balance the contradiction of proof between the patient and the medical institution in order to achieve ultimate fairness.

The burden of proof for major medical defects is reversed

The reversal of the burden of proof for major medical defects means that when a medical institution and its medical staff have a major medical defect, the burden of proving the causal relationship between the damage suffered by the patient and the medical defect is transferred to the medical institution, and the causal relationship is presumed to exist, and the medical institution needs to prove that the major medical defect has nothing to do with the patient's damage.

A major medical defect is one in which a physician's conduct is manifestly inconsistent with medical law or generally accepted medical knowledge, and such defect should not have occurred to a physician with specialized knowledge. The criteria for judging major medical defects are basic medical principles and proper medical knowledge, and the degree of subjective criticism of doctors is not considered, but only objective behavior is used as the criterion. At the same time, the determination of material defects does not presuppose the existence of gross negligence on the part of the physician. After the application of this principle, the causal relationship between the medical defect and the result of the damage is presumed to be established, and the medical institution or medical personnel bear the burden of proving that there is no causal relationship between the material medical defect and the result of the patient's damage. However, the patient still bears the burden of proving that there is a major medical defect in the doctor's diagnosis and treatment activities.

The application of this principle helps to reduce the burden of proof on patients while ensuring that medical institutions are held accountable for major medical defects. However, attention should still be paid to the fairness and reasonableness of the allocation of the burden of proof to avoid placing an undue burden on medical institutions. Therefore, the application of this rule in specific cases in Germany is very strict and requires strict trade-offs and considerations in specific cases.

Proof of obstruction

The proof of obstruction rule means that if the defendant doctor intentionally or negligently obstructs the plaintiff patient's act of proof to seek medical damages, then it may be presumed that there is a causal link between the medical act and the result of the damage. There are generally two situations in which an obstruction is demonstrated. The first is that the doctor fails to fulfill the ancillary obligations in the diagnosis and treatment process, resulting in the patient being unable to complete the presentation of evidence, such as failing to properly keep the medical records. The second is that the doctor's diagnosis is flawed, making it difficult for the patient to present evidence. In these two special cases, the patient's burden of proof can be relieved.

Hazardous Area Theory

The hazard field theory is a supplement and refinement to the "normative theory". It relies not only on the provisions of the substantive law to determine the burden of proof, but also on the allocation of the burden of proof according to the ease with which the parties prove the facts to be proved and whether they have a duty to prevent the damage from occurring or further expanding. This theory asserts that if the cause of the damage is within the scope of the wrongdoer's area of danger and is within the control of the wrongdoer, then the burden of proof should be borne by the wrongdoer. In other words, when the medical institution has the obligation and ability to control the act that caused the patient's damage, the burden of proving the establishment of causation, which should have been borne by the patient, is shifted to the medical institution.

To sum up, the burden of proof mitigation system effectively balances the rights and interests of patients and medical institutions and ensures social fairness and justice by reasonably adjusting the burden of proof on both sides of the litigation and alleviating the difficulty of patients in presenting evidence. Theoretically, this system improves the theoretical system of the distribution of the burden of proof, balances the interests of patients and medical institutions from the perspective of ultimate fairness and justice, and provides new ideas and methods for solving the problem of proof in medical litigation. In practice, this system improves judicial efficiency, reduces the burden of proof on the parties in medical litigation, protects the legitimate rights and interests of the parties, and promotes the development of the medical industry and the realization of social fairness and justice.

[This article is the phased achievement of the ministry-level scientific research project of the Ministry of Justice, "Practical Form and System Improvement of Causation Certification in Medical Litigation" (20SFB4047)]

(Author's Affiliation: Research Center for Procedural Law and Judicial Reform, Southwest University of Political Science and Law)

Source: People's Court Daily Author: Zhang Peiyao