Evidentiary Fairness in Disputes Between Patients and Healthcare Providers: Allocation of the Burden of Proof in Cases of Alternative Causation

Abstract

The article addresses the issue of evidentiary fairness in disputes between patients and healthcare providers, with a particular focus on the allocation of the burden of proof in cases of alternative and modified alternative causation. The author first outlines the general rules governing the burden of proof in civil proceedings and the exceptional cases, as already recognized by Czech case law, in which the burden of proof may be reversed in medical liability disputes. The article then analyzes cases of alternative causation and modified alternative causation in which legal theory has considered a reversal of the burden of proof. Particular attention is devoted to the German legal framework under § 630h(5) of the German Civil Code (BGB), which presumes a causal link in cases of gross treatment errors. The author critically assesses this approach and concludes that reversing the burden of proof does not constitute a fair or functional solution to cases of alternative (and modified alternative) causation, as it preserves the undesirable “all-or-nothing” principle and leads to arbitrary and unjust outcomes. As a more appropriate alternative, the author ultimately proposes Franz Bydlinski’s theory of proportional liability, which allows for a more equitable distribution of damages in light of the plurality and probability of the individual causes of harm.