How to Prove the Medical Civil Liability in Chilean Justice?

Abstract

In Chilean justice medical liability is settled based on rules of entries and exits that inform the litigants of the issues of fact that must be proven in each trial. This paper demonstrates that Chilean practice has regulated the proof of these questions of fact, consecrating the sovereignty of the trial court to decide the proven facts and to the medical testimony as the best available evidence to infringement of a duty of care. The uncertainty of therapeutic risk encourages the judicial use of rules of thumb —including res ipsa loquitur— to settle what risks are inherent to the service. This proof regulation applies whether the liability comes from a treatment (medical professionals) as from the health service organization (Hospitals and Clinics).