La carga de la prueba en la responsabilidad médica

Abstract

Analyze the involvement of precedent produced by the front of the burden of proof in medical liability, since the Council has been changed positions several times, in some cases favoring and disfavoring other parties according to as established thinking. In principle, the Honorable Council of State had applied the theory of proven medical service failure, which meant that whoever triggering the judiciary ie the plaintiff was obliged to bear the burden of proof that is was commissioned to prove that there was a service failure and the failure of it actually materialized, but in Case October 24, 1990, file No. 5902, the rapporteur Counselor "Gustavo de Greiff Restrepo," a jurisprudential change and posits alleged failure of the medical service, arguing that investment was needed in the dynamic burden of proof demonstrating that the injured party is not whom rightful proving lack of diligence, contrary to the defendant census is who gets to prove that he acted diligently is that there was no fault to be the expert or the person is aware or who knows really how things occurred while the affected is farther knowledge, therefore it would be more difficult to prove . However prior to that judgment, the Council of State change of position based on the distinction of obligations of means and results and considering that medical obligations are medium, which means that the failure to obtain a desired result does not the guilt of the defendant is presumed. Coronation of the above, we can say that it is still more unfavorable to the victim of a medical failure that despite rightful withstand the damage caused by a lack of negligence, he must prove also that no doctor or expert had sufficient care for the execution of the work, as instead the physician who is the expert and who will is easier to prove just abide by what is proved by the victim.