Reversal of the Burden of Proof in Patient Claims Against Healthcare Providers

Under What Circumstances Can the Burden of Proof Be Reversed in a Patient's Compensation Claim Against a Healthcare Provider?

A patient visited a dermatologist with a suspicious lesion on his forehead. The physician diagnosed it as a benign keratoma without performing a histopathological examination. It later became apparent that the lesion was malignant. As a result, the patient required more extensive and invasive treatment than would likely have been necessary had the cancer been diagnosed from the outset. Had the diagnosis been established correctly at the beginning, the treatment would likely have been more successful.

The patient (the claimant) sought compensation for non-pecuniary harm resulting from personal injury from the physician (the defendant) and the physician's insurer, alleging that the harm had arisen in connection with the defendant's medical treatment.

Proceedings Before the Lower Courts

The key issue considered by the courts of first and second instance was whether the physician had acted lege artis during the patient's initial examination.

The term lege artis refers to the provision of healthcare services at an appropriate professional standard, that is, in accordance with scientific knowledge and accepted medical procedures, while respecting the patient's individual circumstances and taking into account the specific conditions and objective possibilities of treatment. Patients are entitled to receive healthcare at such a standard, and healthcare providers are legally obliged to ensure it.

In addition to the duty to provide care lege artis, healthcare providers are also required to maintain proper medical records. Medical records must contain, among other things, information concerning the patient's health condition, the course and outcome of treatment, and information obtained from the patient's medical history, including family, personal, and occupational history.

The medical records maintained by the defendant concerning the clinical examination were extremely brief and contained virtually no information about the examination performed, the nature of the condition, the patient's medical history, or any other relevant findings.

The court-appointed expert was unable to determine conclusively, on the basis of such inadequate records, whether the physician had acted lege artis. In the absence of information from which she could conclude otherwise, the expert ultimately assessed the physician's conduct as compliant with the applicable professional standard.

Both the trial court and the appellate court adopted that conclusion and held that the patient had failed to discharge the burden of proving that the physician had acted non lege artis, i.e. unlawfully. The claim was therefore dismissed, and the appellate court upheld the judgment. A subsequent appeal on points of law was rejected on procedural grounds.

However, by its judgment of 28 June 2022, Case No. I. ÚS 1785/21, the Czech Constitutional Court quashed all prior decisions in the case, which was subsequently remitted to the District Court in Nymburk for further proceedings.

Expert Evidence and Medical Records

The Constitutional Court reiterated its earlier case law concerning expert evidence. An expert opinion must be assessed by the court with the same level of scrutiny as any other evidence. An expert report cannot become the sole basis for the court's findings, nor may it substitute for the court's own factual findings.

Where expert evidence is necessary, the expert must be provided with all available evidence, particularly evidence capable of directly influencing the expert's conclusions and, indirectly, the outcome of the proceedings. If an expert bases their opinion on materials that are not relevant to the disputed issue, the court must take this into account when evaluating the opinion. In such circumstances, the expert report may be incapable of supporting the necessary factual conclusions. If those conclusions cannot be established from other evidence already produced or proposed, the court must provide appropriate procedural guidance to the parties.

Although a failure to maintain proper medical records does not in itself constitute treatment non lege artis, it may significantly affect the occurrence and proof of harm. The Constitutional Court further held that the question of whether medical records comply with statutory requirements is ultimately a question of law.

The Burden of Proof in Medical Malpractice Litigation

Although the allocation of the burden of proof generally follows substantive law principles—meaning that each party must prove the facts from which it derives favourable legal consequences—exceptions exist.

Medical malpractice disputes frequently involve situations where the patient, as claimant, is unable to satisfy the burden of proof because they occupy a substantially weaker position. Patients typically do not control the medical records, which often constitute the key evidence in the case, and they bear no responsibility for any deficiencies in those records.

The Constitutional Court referred to legal scholarship suggesting that, where proper medical records are absent, courts may consider reversing the burden of proof. In such circumstances, treatment non lege artis may be presumed, and the healthcare provider bears the burden of proving that they acted with due professional care.

The Court also referred to its earlier case law, according to which the reversal of the burden of proof may serve as a measure of ultima ratio where it is impossible to impose a duty of explanation on the healthcare provider because the relevant medical records were either never created or have been lost. In such situations, the healthcare provider bears the burden of proving facts asserted by the claimant that should have been ascertainable from the medical records.

This approach is based on the principle that a healthcare provider should not be permitted to benefit from its own unlawful or dishonest conduct at the expense of the patient.

The Constitutional Court further emphasised that the mere fact that a diagnosis ultimately proves incorrect does not, by itself, establish that the physician acted non lege artis. The decisive question is whether there was a serious departure from accepted medical procedures in arriving at the diagnosis. If the physician properly used the available diagnostic methods and the malignancy nevertheless went undetected, the claimant would not automatically be entitled to compensation.

Commentary on the Decision

It should be noted that the approach discussed in the cited literature concerning the reversal of the burden of proof has long been recognised in German legal doctrine and case law and has been codified in Section 630h(3) and (5) of the German Civil Code (Bürgerliches Gesetzbuch – BGB).

Under German law, where a healthcare provider fails to document a medically necessary measure or its outcome in the patient's records, it is presumed that the measure was not performed.

Furthermore, where a gross treatment error is generally capable of causing the type of injury that actually occurred, German law presumes causation. The same applies where a medically necessary examination was not performed in a timely manner and such examination would likely have revealed findings requiring further treatment, the omission of which would itself constitute a gross treatment error.

Accordingly, under the BGB, if a physician fails to maintain adequate records of an important examination capable of significantly affecting the outcome of treatment, it may be presumed that the examination was not performed and that the physician committed a gross treatment error. In certain circumstances, it may even be presumed that such error caused the patient's injury.

However, these presumptions do not generally relieve the claimant of the obligation to establish causation between the presumed unlawful conduct and the resulting harm. The presumption does not apply where a causal relationship between the alleged error and the injury is clearly improbable.

As regards Czech case law, the Czech Supreme Court held in a 2020 judgment that, where a patient seeks compensation from a healthcare provider, situations may arise in which the patient, due to their significantly weaker professional and informational position, is unable to produce all evidence necessary to support their claim. Where proof of a particular element of liability depends on medical records that are controlled by the healthcare provider, an exceptional procedural mechanism in the form of a reversal of the burden of proof may be justified.

The Constitutional Court reached the same conclusion in its judgment of 28 April 2020, Case No. I. ÚS 3937/18.

Nevertheless, unlike under German law, the reversal of the burden of proof remains an exceptional measure in Czech law and does not occur automatically. Courts must always explain clearly and comprehensively why such an approach is justified in the particular circumstances of the case.

It must also be stressed that deficiencies in medical records alone are not sufficient to establish liability. The existence of liability cannot be inferred merely because medical records were improperly maintained.

Conclusion

The Constitutional Court concluded that where medical records fail to contain the information required by law and, as a result, the claimant risks being unsuccessful solely because they cannot prove the circumstances surrounding their injury, the court may resort to the reversal of the burden of proof as a measure of ultima ratio.

A fair outcome cannot be the dismissal of a claim where the claimant finds themselves in evidential difficulty due to a breach of duty—albeit a secondary duty—by the healthcare provider, who should not be permitted to benefit from its own misconduct.

The consequence of reversing the burden of proof is a presumption of unlawful conduct, i.e. treatment non lege artis, unless the healthcare provider proves otherwise.

The reversal of the burden of proof is therefore not automatic in medical malpractice litigation. It is an exceptional remedy that should only be employed where other procedural tools, including the duty of explanation, are insufficient. Whenever a court chooses to reverse the burden of proof, it must provide detailed reasons for doing so.

Moreover, the reversal should apply only to those facts asserted by the claimant that ought to have been clarified through the medical records.