Study on the dilemma and optimization of applying the rule of inversion of proof in the diagnosis of occupational diseases——Comment on article 28 of Administrative Measures for Diagnosis and Verification of Occupational Diseases / 中国职业医学

In the process of occupational disease diagnosis and verification, the rule of inversion of proof is implemented. The purpose of proof is to solve the causal relationship between occupational hazardous factors and occupational diseases in the workplace, and its essence is the responsibility for consequences. However, in the practice of diagnosis and verification of occupational diseases, there are many difficulties in the application of the rule of inversion of burden of proof, which is dare not apply, difficult to apply, and wrong application might occur. Satisfying probability is the premise for the application of the rule of inversion of burden of proof. The relevant judgment of evidence is the basic way to apply the rule. Optimize the article 28 of Administrative Measures for Diagnosis and Verification of Occupational Diseases, delete the precondition “urged by health authorities”, that is an important guarantee for the accurate application of the rule. To clarify the nature of the burden of proof, correctly apply and optimize the rules of proof in the practice of diagnosis and verification occupational diseases, further improve the legislation, and promote the accurate application of the relevant legal system are conducive to protecting the rights and interests of workers in occupational health and implementing the principal responsibility of employers for occupational disease prevention and control.

Review of the recent Supreme Court decision on the causal relationship of occupational diseases

A theoretical study advocated for alleviating the worker's responsibility of burden of proof to establish the causality of an occupational disease, since such a responsibility is unfair to the worker. The recent judgment has adopted some of these arguments for alleviating the worker's responsibility of burden of proof, and the judgment is significant since it is the first Supreme Court decision to recognize the causality of occupational diseases. The judgment expressly confirms that it is more proactive to recognize the causal relationship between work and certain diseases, and to provide compensation for industrial accidents to employees who are exposed to harmful substances at all times. In addition, the judgment also confirms that coverage of industrial safety and health risks is in accordance with the original purpose and function of the industrial accident insurance system, which aims to share risks through public insurance.

La carga dinámica de la prueba como modalidad de carga probatoria aplicada en el ordenamiento jurídico colombiano. Vulneración a la igualdad constitucional

La carga dinámica de la prueba es una regla de juicio en materia probatoria, vigente en el ordenamiento jurídico colombiano, que consiste en asignar el gravamen de probar a la parte que se encuentre en mejores condiciones para hacerlo. Su implementación trae importantes y novedosas consecuencias prácticas, que analizadas a la luz de razonamientos constitucionales, atentan contra la supremacía constitucional en materia de igualdad. Esta regla favorece a uno de los extremos procesales y se consagra como una medida de diferenciación instituida en virtud del mandato de trato diferencial equitativo incluido en la Constitución política. Por ello se debe acreditar, para su válida procedencia, el cumplimiento de los requisitos exigidos por la Corte, como: la existencia de una justificación objetiva y razonable, una relación de proporcionalidad y racionalidad entre la justificación, los hechos y el fin perseguido. Sin embargo, la regla no cumple con el requisito de ser cimentada sobre una justificación que sea objetiva y por ello, constituye una diferenciación que contrario a materializar la igualdad real, termina por ocasionar su vulneración. Por esa razón se propone la regulación de la norma, a fin de asegurar que su aplicación solo se dé cuando exista justificación objetiva y razonable, esto es, ante la verificación de un desequilibrio real, que posea la entidad suficiente para hacer imperiosa la distribución de las cargas, ante la inminencia de afectación del derecho de defensa.

The dynamic burden of proof is on probation judgment rule, in force in the Colombian legal system, which is to allocate the burden of proving to the party is in a better position to make it matter. Its implementation brings important new practical consequences, which analyzed in the light of constitutional reasoning, undermine the constitutional supremacy on equality. This rule favors one of the procedural ends and is enshrined as a measure of differentiation established under the mandate of fair differential treatment included in the Constitution, therefore should be credited for their valid origin, compliance with the requirements of the Constitutional Court, such as: the existence of an objective and reasonable justification, a relationship of proportionality between justification and rationality facts and the aim pursued. However the rule does not meet the requirement of being founded on a rationale that is objective and therefore constitutes a differentiation that contrary to materialize real equality, ends up causing their violation. For that reason the regulation of the standard to ensure that your application will only be given when there is objective and reasonable justification is proposed, that is, before the verification of a real imbalance, which has sufficient authority to make urgent distribution of loads, the imminence of involvement of the right of defense.

A carga dinâmica da prova cabe a regra de julgamento liberdade condicional, em vigor no ordenamento jurídico colombiano, que é alocar o ônus de provar que o partido está em uma posição melhor para fazer isso importa. A sua implementação traz novas importantes consequências práticas, que analisou À luz do raciocínio constitucional, minar a supremacia constitucional sobre a igualdade. Esta regra favorece uma das extremidades processuais e está consagrado como uma medida de diferenciação estabelecida sob o mandato de um tratamento diferenciado justo incluído na Constituição. Portanto, deve ser creditado para a sua origem válido, o cumprimento das exigências do Tribunal, tais como a existência de uma justificação objectiva e razoável, uma relação de proporcionalidade entre a justificação e racionalidade, fatos e o objectivo prosseguido. No entanto, a regra não cumprir a exigência de ser fundada em uma lógica que é objetiva e constitui, portanto, uma diferenciação que, ao contrário de materializar igualdade real, acaba causando sua violação. Por essa razão, a regulamentação da norma é proposto, para garantir que a sua candidatura só será dado quando há justificação objectiva e razoável, isto é, antes da verificação de um desequilíbrio real, que tem autoridade suficiente para tornar a distribuição urgente cargas, a iminência de envolvimento do direito de defesa.

Civil liability for medical malpractice

Medical disputes are rapidly increasing due to patients' rising awareness of their rights and greater access to medical information. Medical negligence means the breach of the duty of care based on the level of medical acts currently carried out in the field of clinical medicine at the time of performing the medical acts. To hold medical personnel liable for breach of the duty of care, the breach of the duty of care in medical acts, generation of damage, and the existence of causation between them should each be proven. The victim bears the burden of proving the elements. Considering the nature of medical acts such as the high degree of professionalism, doctor's discretion and incompleteness of medicine, judicial precedent has established a theory to ease the victim's burden of proof. When a doctor has corrected medical records after acci-dent, this is an act of obstructing verification. The court can use this fact against the obstructing party upon free evaluation of evidence. The liability for explanation is one of the doctor's most important duties. Moreover, doctors should prove that they fulfill the duty of explanation. This paper reviews the civil liability for medical malpractice. Due to the nature of a doctors' work, being charged with the lives, bodies, and health of patients, medical accidents may be inevi-table. Therefore, it is becoming more important for medical personnel to acquire ongoing medi-cal knowledge, keep medical records thoroughly, establish a good rapport with patients and faithfully perform the duty of explanation.

Social recognition of medical accident

There has been a great deal of concern about medical malpractice in Korea. Exact figures are difficult to determine, but medical accidents or disputes have increased since the late 1980's. Since 1988, there have been various legislative attempts to pass the 'Medical Dispute Adjustment Act', a kind of alternative dispute resolution. Finally, in March 2011, the mediation law was enacted. The purpose of this law is to create a rapid, efficient recovery system for patients, and to provide a safe, stable environment for medical personnel. Even though medical accidents are inevitable, like other accidents, of course neither doctors nor patients wish for them to occur. However, the medical system lacks an alternative solution for promoting a rational process for communication about medical accidents. As a result, violence against doctors and occupation of medical institutions are more common than they could be. Meanwhile, the Supreme Court has alleviated the burden of proof in medical disputes by applying the theory of prima facie evidence to protect the rights of patients. Though the Supreme Court's position is reasonable in terms of patient care, these cases could lead to 'defensive medicine'. This phrase refers to treatments motivated more by the reduction of liability than by medical needs. This means an increase in health care costs. Above all, civil litigation requires a great deal of time for both parties. Consequently, if medical accidents are inevitable, medical personnel should respond proactively to accidents rather than concealing them. The social recognition of medical malpractice must change in order to create an effective adjustment system and prevent as many medical accidents as possible.

Discussions on the persuasion of proof for medical tort lawsuits / 中华医院管理杂志

Discussions were made regarding the burden of persuasion and that of proof in tort lawsuits,distribution of the burden of persuasion in both medical tort cases and those in non-medical malpractice tort lawsuits.It is found that in cases involving tort of medical institutions,medical behavior tort and non-medical tort cases should be set apart depending on the nature of the lawsuit.Under the existing legal system,it is also necessary to distinguish the medical behavior tort incurred by medical malpractice from that irrelevant to malpractice.which will be critical for distribution of the burden proof and calculation of the compensation.

Impact and Countermeasure of Inverted Burden of Proof in Clinical Practice and Teaching / 中华医学教育探索杂志

With the implement of inverted burden of proof,the work of clinical practice and teaching faces challenge. At present, more aspects of clinical medicine and practice teaching are not suitable for the new rule, and they have affected and restricted the improvement of quality of clinical practice teaching. It is necessary for interns and clinical tutors to study the new rule and suit its demands. Only in this way can the quality of clinical medicine, teaching and practice be improved.