The presumption of facts in medical negligence cases: a perspective from patient (plaintiff) protection and the defense of the physician (defendant)

Abstract

This article aims to help medical personnel including those who are interested in legal matters, to understand the principle of presumption based on facts, which is an important evidentiary principle for judge’s considerations in tort cases.  The principle of presumption of fact has long been an important legal principle in Thai court for decision-making in tort cases of negligence, including tort cases of medical negligence.  As a means of maintaining justice - to provide victims with compensation in situations where it is obvious that they will not receive compensation due to the difficulty of the burden of proof. The principle of presumption of fact results in the plaintiff’s benefiting from an inference or preliminary assumption of the defendant's negligence. It is not to prove absolute negligence. A defendant can still rebut the presumption of presumed negligence by disproving that they did not act negligently - by showing evidence that he or she has performed treatment according to a good medical knowledge and standards. Therefore, it gives the defendant an opportunity to fully fight the case without being bound by the plaintiff's complaint. This article demonstrates the importance of using factual presumptions in medical malpractice cases based on negligence as a legal evidence that judges employ to ensure fairness to both plaintiffs (patients) and defendants (doctors and other personnel).