Reversal of the Burden of Proof in a personal injury dispute between patient and doctor

10/09/2022

In this article, we summarize and comment on the recent decision by Czech Constitutional Court on reversal of burden of proof in medical law disputes. Revesal of burden of proof is possible in favour of the patient under certain conditions.

The factual situation

In 2016, a patient visited a dermatologist. He had a suspicious mole on his forehead. The doctor diagnosed him with a benign keratoma without performing a histopathological examination. Later it turned out to be cancer. This required more extensive and invasive treatment than it would had the malignancy been recognised from the outset. Had the diagnosis been made correctly from the beginning, the treatment would have likely been more successful.

The patient (the applicant) sought compensation at court from the doctor (the defendant) and his insurer for the non-material loss to his health which he suffered as a result of the doctor's conduct.

Proceedings before the courts of law

The principal question before the courts of first and second instance was whether or not the doctor had acted lege artis when he first examined the patient. Lege artis means providing medical service at an appropriate professional level, that is to say, "in accordance with the rules of science and accepted medical practice, respecting the individuality of the patient, having regard to the particular conditions and objective possibilities".[1] The patient is entitled to such a level of service and the healthcare provider is obliged to maintain the appropriate level of care.

In addition to lege artis practice, another important duty of the healthcare provider is the proper maintenance of medical records.[2] Medical records must contain, inter alia, information on the patient's state of health, the course and outcome of the health services provided, or data obtained from medical history (at least family, personal or work history).

The medical records of the clinical examination kept by the defendant were very concise and contained virtually no information about the clinical examination carried out, no description of the problem or other findings about the patient, his personal history, etc. The expert witness who examined the steps taken by the defendant could not draw a clear conclusion on the basis of such poorly kept medical records as to whether the doctor had acted lege artis or not. Thus, due to the lack of information from which the expert witness could conclude otherwise, he characterised the doctor's practice as lege artis. The Court of First Instance and the Court of Appeal adopted this conclusion and unanimously concluded that the patient, as the claimant, had not sustained the burden of proving that the doctor had acted non lege artis (i.e. that the doctor had acted unlawfully). The action was therefore dismissed and the Court of Appeal upheld the judgment. The application for extraordinary remedy was dismissed by the Supreme Court on procedural grounds.

By its ruling of 28 June 2022, Case No I.ÚS 1785/21, the Constitutional Court annulled all the previous decisions of the courts in the proceedings in question, and the matter will therefore be decided again by the District Court in Nymburk.

Evidence by expert opinion and medical documentation

The Constitutional Court reiterated its earlier conclusions regarding the evidence provided by expert reports, i.e. that an expert's report is subject to the same careful assessment by the court as any other evidence. Expert's report must not remain the only evidence, nor may it substitute for a lack of factual findings by the court.[3] If the expert's report is necessary for the decision, the expert must be provided with all the evidence available and produced, in particular the evidence which is directly capable of influencing his conclusions and indirectly influence the decision on the merits of the case.[4] If the expert has relied on material which is not relevant to the determination of the issue in dispute, the expert's report must be assessed by the court in that light - e.g., if no relevant factual conclusion can be drawn from it, and if no conclusion can be drawn from other evidence taken or offered, the court must give the parties appropriate instructions.

Although breach of the duty to keep proper medical records is not in itself a non lege artis practice, it may have an impact on the causation of personal injury. In its judgment, the Constitutional Court took the view that the question of whether medical records meet the content requirements prescribed by law is a question of law.

Burden of proof for parties to medical disputes

The distribution of the burden of proof generally follows from the substantive law relationship. This means that the burden of proof as to the existence of certain facts lies with the party who draws favourable legal consequences for themselves from the existence of those facts. However, there are exceptions to this rule. Typically, in medical law disputes, there is a situation in which the patient as the plaintiff is unable to bear the burden of proof because he or she is in a weaker position. Firstly, he or she does not have access to medical records that can be key evidence in the dispute, and secondly, he or she cannot be responsible for any deficiencies in the medical records (or their inconclusiveness).

The Constitutional Court cited literature according to which the reversal of the burden of proof may be considered in specific cases: in the absence of proper medical documentation, a non lege artis action by the doctor is presumed and it is the health care provider who proves that they have acted with due care.[5]

The Constitutional Court also referred to their earlier finding that, if it is not possible to impose on the healthcare provider, as defendant, the obligation to provide the medical records, because the records were either not produced at all or have been lost, the burden of proof may be reversed as an ultima ratio measure.[6] It is thus the healthcare provider who bears the burden of proof as to the facts alleged by the applicant which should have been clarified by the medical records. This conclusion is based on the principle that health care providers cannot benefit from their unlawful or dishonest conduct to the detriment of the patient.

Furthermore, the Constitutional Court emphasised that the mere fact of whether or not the diagnosis was correctly made does not affect the conclusion as to whether or not the doctor acted lege artis. On the other hand, it is relevant whether there was a serious breach of medical procedures in establishing the diagnosis. If the doctor had made proper use of the available diagnostic methods and yet the malignancy of the tumour had not been detected, this fact alone would not justify the applicant's claim.

Commentary on the decision

It should be added to the above that the approach of the cited literature (regarding the automatic reversal of the burden of proof) has long been held by German doctrine and case law and has been embodied in § 630h(3) in conjunction with § 630h(5) BGB. "If a health care provider has not recorded a medically necessary measure and its result in the patient's medical records in violation of § 630f (1) or (2), or if he has not kept the patient's records in violation of § 630f (3), he shall be deemed not to have carried out the measure."[7] According to § 630h (5) BGB: "If a gross error in treatment occurs which is in principle capable of causing injury to life, health or body of the kind that actually occurred, the cause of that injury shall be deemed to be the error in treatment. This applies even if the health care provider failed to make or secure a medically necessary finding in a timely manner, if that finding would have been reasonably likely to lead to a result which would have warranted further action, and if the failure to take such action would have constituted gross misconduct."

Thus, in accordance with the cited BGB regulation, if a doctor fails to keep proper medical records regarding an important examination that may have a major impact on the outcome of the patient's treatment, the examination is presumed not to have been performed, and thus the doctor is presumed to have committed gross misconduct, and may even be presumed to have caused the patient's injury.

However, it should be added that those legal presumptions, which are enshrined in the German legislation, do not, in general terms, affect the applicant's obligation to prove a causal link between the defendant's allegedly unlawful conduct and its consequences. That presumption does not apply where the causal link between the allegedly wrongful conduct of the doctor and the consequence is wholly improbable.[8]

With regard to the Czech Supreme Court's earlier case law on the possibility of burden of proof reversal, one judgment of 2020 shall be mentioned. In that judgment, the patient is the injured party and the health care provider is the injurious party, the Court stated: "a situation may arise where the injured party - because of his professional and material disadvantage compared to the position of the injurious party - will usually not be able to present all the evidence in support of their claims. If this happens in cases where one of the prerequisites for liability for injury can only be proved with the aid of medical documentation which is in the possession of the injured party, an exceptional procedural approach consisting in the so-called reversal of the burden of proof may be admitted". The same conclusion was reached by the Constitutional Court in its judgment of 28 April 2020, Case No I.ÚS 3937/18. Therefore, it is not a novelty in Czech law either.

The reversal of the burden of proof (unlike in German law) is, however, an exceptional measure and does not occur automatically: "The court is, however, always obliged to explain its reasoning properly and comprehensibly in the reasons for the decision, in relation to all the parties to the proceedings".[9]

It should also be pointed out that when assessing the prerequisites for the establishment of a claim for compensation for personal injury, the liability of the doctor cannot be assumed by a simplistic conclusion. It is not possible to conclude that the health care provider is liable for damage to the patient's health on the basis of deficiencies in medical documentation alone.[10]

Conclusion

"If the medical record does not follow the statutory requirements (...) and the plaintiff is therefore at risk of failing to meet the burden of proof for the allegation of personal injury, it is reasonable for the court to resort to the ultima ratio remedy of reversing the burden of proof (shifting it without a formal decision to a party on whom it would not normally lie). The fair result of the proceedings cannot be the dismissal of the action in a situation where the claimant is in an evidential quandary as a result of a breach (albeit secondary) of duty by a healthcare provider who may not in fact benefit from its misconduct. The consequence of reversing (shifting) the burden of proof to the health care provider is a presumption of wrongdoing as one of the prerequisites for personal injury (a non lege artis procedure) unless the defendant health care entity proves otherwise."

The reversal of the burden of proof does not occur automatically in medical-legal disputes, but it is an ultima ratio remedy if the imposition of an "explanatory obligation" (obligation to provide certain document) under section 129(2) of the Civil Procedure Code is not an option. If the court proceeds to use such a remedy, it must give proper reasons for doing so.

The reversal of the burden of proof should apply only to the facts alleged by the applicant which should have been clarified by the medical records.

We published this article in Czech on: https://www.pravniprostor.cz/clanky/obcanske-pravo/obraceni-dukazniho-bremene-ve-sporu-o-odcineni-ujmy-na-zdravi-mezi-pacientem-poskytovatelem-zdravotni-pece


[1] Section 4 of Act No 372/2011 Coll., on Health Services and Conditions of their Provision (Health Services Act).

[2] Section 53 of the Health Services Act.

[3] Ruling of the Constitutional Court, Case No. III ÚS 299/06 of 30 April 2007.

[4] Ruling of the Constitutional Court, Case No. I. ÚS 3253/13 of 26 August 2015.

[5] Holčapek, T. Dokazování v medicínskoprávních sporech, p. 104 and following. Prague: Wolters Kluwer. 2011.

[6] Ruling of the Constitutional Court of 9 May 2018, Case No. IV ÚS 14/17.

[7] Section 630h(3) Bürgerliches Gesetzbuch, German General Civil Code. Author's own translation, emphasis added.

[8] Ibid.

[9] Resolution of the Constitutional Court of 3 March 2020, Case No. IV ÚS 2352/19.

[10] Resolution of the Constitutional Court of 3 March 2020, Case No. IV ÚS 2352/19.