Mecanismos de flexibilización de la prueba de la culpa y del nexo causal en la responsabilidad civil médico-sanitaria = Difficulties of proof in medical malpractice: tools making the burden of proof easier

This paper assumes that the parties in a medical malpractice trial find difficulties in proving the conditions of liability. Most part of legal systems develop a range of tools whose main function is to facilitate the role of the parties in providing evidence. Some of these tools are exceptional (as happens, for instance, with legal presumptions), while others are more extended. This later can be the case of judicial presumptions of fault or even of causation («res ipsa loquitur», daño desproporcionado, 'faute virtuelle' or 'prima facie' proof). In Spain, it also plays an important role the principle stated in Art. 217.7 LECiv/2000, according to which the judge is allowed to modify the general rules on the burden of proof in case that one of the parties is in a better position to provide evidence or to reach to the means of evidence ('principio de mayor facilidad o disponibilidad probatoria'). This rule is also acknowledged by other countries, although its development has taken place mainly through case-law. On another side, German case-law does also embrace some judicial reversals of the burden of proof, either of fault ('voll beherrschbare Risiken') or of causation ('grobe Behandlungsfehler'), when specific circumstances are met. A Spanish approach could look at these cases as a matter of 'mayor facilidad o disponibilidad probatoria', so then the judge is authorized to change traditional rules on the burden of proof ​
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