Ar bendrosios įrodinėjimo pareigos paskirstymo taisyklės taikymas žalos pacientų sveikatai atlyginimo bylose užtikrina proceso šalių lygiateisiškumą? ; Whether the Application of the Common Proof Distribution Practice in the Patient's Health Damage Compensation Cases Ensures the Equality of Litigators?

Abstract

In Lithuania, cases of medical malpractice are treated like other tort cases. The main principle in tort cases is that civil liability shall only be applied if the following conditions precedent are established: maplractice, damage, causational link between the malpractice and damage and, finally, fault. It is the duty of the plaintiff to prove three of the conditions precedent: maplractice, damage and the causational link between the malpractice and damage. As to fault, it is presumed once malpractice is established. Therefore, the plaintiff has no budren to prove it. On the contrary, it is then the burden of the defendant to submit evidence to court that that he or she was at no fault. The same distribution of the burden of proof is aplied in cases of medical malpractice, too. It is the patient who must prove that the defendant – hospital or another healtcare institution – conducted certain malpractice, which caused damage to the patient's health or even caused his or her death, if the claim is raised by the deceased patient's relatives. This is the so called general rule of the distribution of the burden of proof. However, unlike other tort cases, cases of medical malpractice are specific. Evaluation of healthcare services always requires medical knowledge and the acknowledged right to applie it, which the patient or his relatives usually do not have. Furthermore, in the jurisprudence of the Lithuanian courts it is established that medical malpractice can only be proved by the opinion and conclusions of the healthcare specialists and/ or medical experts. Explanations and subjective evaluation of the facts by the patient himself or herself have no evidential significance. Thus, the patient, seeking to prove his or her claim, must ask other healthcare specialists to evaluate behaviour and decisions of treatment of their colleagues. Usually, due to the conflict of interest such other specialists refuse to witness at court againts their colleague doctors. In such situations patients find themselves helpless and with no effective means to prove their claim. The author of this thesis questions such practice of distribution of the burden of prove and views it as potentially contradicting the equality of litigators, which is one of the main principles of the Lithuanian civil procedure. The author argues that in other cases, where one of the litigators is a weaker litigator, for example, emplopyee, the heavier budren of proof is laid on the shoulders of the defendant, for example, the employer, who is much stronger and has much more potential to prove his arguments. Why cases of medical malpractice are treated differently? It is evident that a patient is a weakee litigating party due to lack of knowledge of medicine, also due to access to collection of evidence. Experience of other countries in medical malpractice cases in this particular aspect varies from country to country. In some countries like the USA, for example, the same non-patient-friendly approach is aplied as in Lithuania. In Italy, for example, depending on the particularities of medical malpractice, it is the healthcare institution, which must prove that it conducted no malpractice or that damage to the patient was not caused by the healthcare services rendered. In New Zealand, compensation at no-fault system is introduced, where patient may seek a government-funded compensation and cases of medical malpractice must not be solved at courts. Initiatives to introduce a no-fault compensation system appear in Lithuania, as well. Such initiatives have their supporters and critics. In the view of the author of this thesis, one of the alternatives to the introduction of the no-fault compensation system in Lithaunia, is change of the distribution of the burden of proof in medical malpractice cases solved by the Lithuanian courts. In the view of the author, the patientcould be released from the burden of proof of malpractice and causational link. The patient should only prove damage and, having in mind that non-pecuniary damage is always compensated in cases of damage caused to a person's health or murder, the patient or patient's relatives should only have to prove pecuniary damage at court. As to non-pecuniary damage, the courts in Lithuania do not request litigants to prove the size of it, nor there is any amount of such damage regulated by the law. Rather, it is the duty of the court to establish a reasonable size of pecuniary damage on the basis of the criterion set by the law. Thus, it the patient in medical malpractice cases must only prove the fact of damage and the amount of pecuniary damage, this would significantly ease the patient's procedural status. It would then gradually change the negative attitude of the society towards defending patient's rights and interest in cases of medical malpractice. The currently applied distribution of the burden of proof in medical malpractice is one of the key factors, which deters injurder patiens from seeking compensation of damage from the healthcase institution at courts, says the author.