Medical Civil Liability

Rules Concerning Proof

Under review

Proof of the standard of care

The burden of proof rests with the claimant. Therefore, it is up to the patient to prove— usually by presenting expert evidence—that the physician has failed to comply with the accepted standard of care. The patient must demonstrate that the physician being sued did not give the same quality of care one might expect from another physician with the same training in the same circumstances. The physician being sued may also produce his or her own expert witnesses.

Unlike criminal law, where “proof beyond all reasonable doubt” is required, “preponderance of evidence” is the degree  of proof required in professional civil liability. Note that this standard is not of the same order as that of expert scientific evidence.

Presumption of fact

Certain circumstances may warrant a burden of proof reversal in matters of fault as well as causal link. Articles 2846 to 2849 of the Civil Code give the claimant a benefit of this kind when the court deems the presumptions to  be “serious, precise and concordant”. The classical example is forgetting a compress or an instrument in the site of a surgical procedure. It then falls to the physician to make reasonable explanations establishing that he or she did not commit a fault.

2011-04-04