When a patient seeks to hold a doctor or other healthcare provider professionally liable, various questions arise concerning evidence. Who must provide the proof? How should it be presented? To what degree of certainty? The new Civil Code and recent case law shed new light on these questions.
The Principle: Obligation to Cooperate Fairly in the Burden of Proof
The claimant is generally required to provide proof of the claims made in court. Thus, it is up to the patient to prove fault, damage, and causation to claim compensation from the doctor. This principle remains unchanged.
However, all parties involved in the case must cooperate fairly in revealing the truth. Therefore, the doctor or hospital, even as defendants, cannot merely deny the patient’s allegations. They must prove their claims and also provide necessary elements they possess to allow the judge to make an informed decision. The new Civil Code explicitly enshrines this principle (Article 8.4). The judge can even compel a party to produce evidence they possess if they refuse to do so voluntarily.
Some New Developments
Reversal of the Burden of Proof
The judge now has the power to order a reversal of the burden of proof in certain cases (Article 8.4, para. 5). Thus, the judge might decide that it is up to the doctor to prove the absence of fault, rather than the patient to prove its existence. Early rulings show that judges apply this in very limited cases. The conditions are indeed very strict:
The judge must first order all useful investigative measures.
He must also ensure that the parties fulfill their obligation to cooperate fairly in the administration of proof.
He must note that, despite these measures, sufficient evidence has not been obtained.
The measure can only be ordered in exceptional circumstances and only if applying the normal rules is manifestly disproportionate.
The application of this rule in the medical context remains subject to discussion. One might consider, for example, the case of a healthcare provider who has intentionally destroyed certain elements of the medical record.
Proof by Likelihood
The claimant must generally provide proof of their claims with a reasonable degree of certainty (Article 8.5). The proof must be certain. It need not be absolute certainty, but the alleged fact must be free from any reasonable doubt.
However, in certain cases, this proof may be merely likely rather than certain. The preparatory works of the Civil Code mention, in this case, a 75% certainty.
The first scenario is proof of a negative fact. The typical example is that of a patient accusing a doctor of failing to provide information. The absence of information is a negative fact that is difficult to prove. Indeed, the Court of Cassation has clearly decided that it is up to the patient to prove that the doctor failed in their duty to inform, not up to the doctor to prove that they fulfilled it (decision of June 18, 2020). However, the patient will not have to prove the lack of information with certainty but merely present elements that make it likely.
The other scenario is that of a positive fact, but it is materially impossible or unreasonable to prove with certainty. In a recent case, a pregnant woman had a miscarriage after being involved in a car accident. She claimed that the stress from the accident caused the miscarriage. Experts consulted were divided on the issue. The Court of Appeal of Liège considered that it was scientifically impossible to prove the existence of this stress in the specific case. Therefore, the victim could merely provide proof by likelihood. The Court of Cassation confirmed this ruling (decision of November 14, 2022).
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