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Medical Malpractice Law, Medical Malpractice Liability Law, Doctors' Contractual Law, Hospital Legislation, Health Insurance Law, Physician Law, Pharmaceutical Law, Medical Devices Law, Pharmacy law, Nursing Care Insurance law, Corporate Law/ Professional Law/ Remuneration Law for Service Providers

Reversal of the burden of proof

If a doctor makes mistakes, the burden of proof may be required.

In principle, patients can claim damages if they become victims of the doctor´s mistake. However, they are under the burden of proof, i.e. they must prove that a mistake was made and that this mistake caused damage to the health of the patient.  The patient makes a claim and she/he must convince the judge of the facts, i.e. present evidence or create the conditions for the claim. If the patient cannot convince the judge that the doctor acted wrongly and this caused damage to health, the patient will lose in court.

However, it is really difficult to differentiate whether the case of the failed treatment lies in the unpredictability of the human organism or in a mistake on the part of the doctor. The decisive reason for an aggravation of the health conditions of the patient can be difficult to recognize even for an expert.

Patients usually have no medical and in addition, the patient is sometimes not involved in the course of treatment, for example through anaesthesia.

In order to create equality, the legislator has made it easier for the patient to provide evidence in medical liability law.

Some specific situations in the medical malpractice trial can lead to a favourable situation for the patient, so that the reversal of the burden of proof must occur, i.e. the doctor or medical institution must prove that they did not make a mistake. If, for example, it is obvious that the error was caused by a lack of precaution, the reversal of the burden of proof takes effect.

In the case of a medical error, the distribution of evidence thus changes.

Medical errors can therefore make it easier for the patient to provide evidence, but it is important to differentiate precisely between certain types of errors and their severity.

Gross errors are, for example, when patient records are mixed up and this leads to incorrect treatment or even when the right and left sides of a patient’s body are mixed up. If germs occur in areas of hospitals that can be controlled hygienically, this is another example of gross errors.

The doctor has to prove that he has not made a mistake. The patient is relieved and does not have to prove the mistake.

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