從心肌梗塞案談生存之相當程度可能性【醫事法學教室】 試閱
Discussing the Possibility of Survival from the Myocardial Infarction Case
現代型訴訟如醫療民事糾紛，其損害之結果往往涉及複數因素交織而成，且此類訴訟之證據資料多又偏在一方，導致證據資料取得不易，因果關係之認定更顯困難。日本司法實務有採取「相當程度可能性理論」，擴大侵權行為保護客體之範圍，藉由改變實體法上之待證事實，減輕訴訟法上之舉證責任，或可作為吾人於醫療民事訴訟時，認事用法之參考。
In modern litigation, such as medical civil lawsuits, the result of damage often involves the interweaving of plural factors. Besides, the evidence of such litigation is often biased towards one party, which makes the evidential data hard to obtain, and makes the causation more difficultly to determine. The legal practice in Japan adopts the “degree of possibility theory,” in order to expand the scope of protection object in tort. By changing the facts which to be proved in the substantive law to reduce the burden of proof in the procedural law. It may serve as a reference for us to confirm the facts and applies laws in medical civil litigation.
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