英语翻译

The Current Trend of Allocating the Burden of Proof through Medical Malpractice Civil Action

in the United States

Fa-Chang Cheng1,*\

INTRODUCTION

In medical malpractice cases, factual issues are decided by a fact finder (either a jury or

trial judge) through evidence provided by both parties in the process of deciding the burden

of proof. After the plaintiff satisfies the prima facie case requirements, allocation of the

burden of proof in a trial follows according to the rule of law. In ordinary situations, a plaintiff has the ultimate burden of persuasion in a trial, but with trials of medical malpractice, sometimes the rules for allocating the burden of proof differ under some circumstances. The issue of allocating the burden of proof in trials of medical malpractice cases is the focus of this article. Based upon the introductory material and for the purpose of this article, in the beginning, this paper provides a brief explanation of the general principle of allocation of the burden of proof in a trial of civil litigation in the US. Then, the idea and substantial content

of the res ipsa loquitur principle related to trials of medical malpractice for allocation of the burden of proof in the US are introduced. In the last part of this article, a fairly recent case related to the res ipsa loquitur principle is discussed, and personal observations of future trends

in dealing with the issue of allocating the burden of proof in medical malpractice litigation are made.

General principle of allocating the burden of proof in trials of civil litigation in the US

Generally speaking, in civil litigation, if the factual dispute is turned over to the fact finder dispute is turned over to the fact finder to make a decision, the burden of proof is for the plaintiff to reach a level of persuasion by the preponderance of evidence. This means that before a plaintiff can convince the court (or jury) to hand down a judgment in favor of him/her, the plaintiff must prove there is at least a 51%chance of truthful statement in his/her assertion that the defendant

is liable for committing the tortuous activity[2]. As mentioned above, eventually the burden of persuasion is imputed onto the plaintiff[3]. The burden of evidence, which means the process of bringing counter evidence to reduce the credibility of the opposing argument, and the back and forth between parties during the trial or even in the prima facie case stage[4], are burdens on both parties, but not allocating the burden of proof (persuasion) in trial, which is the focus of this article. So, for the issue of allocating the burden of proof in civil litigation, generally speaking, it should indicate that a plaintiff has the burden of proof (persuasion) in a case by the preponderance of the evidence. Shifting the burden of proof (persuasion) to a defendant means that the defendant has the burden of proof (persuasion) in a case by the preponderance of the evidence to that show he/she is not negligent.

Allocating the burden of proof (persuasion) for medical malpractice cases in the US The emerging legal effects of the doctrine of res ipsa loquitur

Although, in ordinary cases, the plaintiff has the burden of proof (persuasion) in civil litigation, the plaintiff has the burden of proof (persuasion) in medical malpractice cases. At the same time,