DIFFICULTIES OF PROOF IN MEDICAL MALPRACTICE CASES: A COMPARATIVE ANALYSIS OF THE LAW OF RUSSIA, BELARUS AND THE EU MEMBER STATES

Abstract

Introduction: in medical malpractice cases, patients (plaintiffs) or their relatives face serious obstacles in proving the conditions of liability of the health care provider: the fact of a medical error, the harm to health, and the causal link. The inherent informational inequality between the parties (a professional subject v. an ordinary person) and the limited accessibility of medical records (potential evidence) for the patient encourage the lawmakers and factfinders to deviate from the traditional formula for allocating the burden of proof. Purpose: to identify general trends in the development of judicial practice in medical disputes in Russia, Belarus, and the EU member states; to assess the prospects for the use in Russia and Belarus of evidence- based approaches developed by foreign legal doctrine to better protect patients’ rights. Methods: the authors use the comparative legal research method when dealing with the legislation, case law, and the legal doctrine of Russia, Belarus, the EU member states and other countries. Results: we have formulated a number of proposals for Russian and Belarusian jurisprudence based on international experience: to use the outcome criterion in assessing the quality of routine medical treatments and interventions (Fr. – obligation de résultat); to interpret any defects in medical records (incomplete information, unspecified corrections, etc.) in favor of the patient; to lower the standard of proof when proving the causal link to the preponderance of probabilities.