Odpowiedzialność częściowa jako remedium na niepewną przyczynowość w sprawach tzw. błędów medycznych

Causation is a relationship between the tortfeasor’s activity and damage (the victim’s injury). According to Article 6 of the Polish Civil Code, the burden of proving a fact lies with the person who asserts legal consequences arising from this fact. Therefore, the plaintiff has the burden of proving that the defendant caused the damage. In medical malpractice cases it often happens that the scope of medical knowledge makes it impossible to determine the cause of the injury. In such cases the plaintiff (patient) loses the lawsuit and receives no compensation. It seems, however, that the medical professional who has committed the negligent act should not benefit from the difficulty the plaintiff faces when proving causation, especially when it comes to personal injuries. Therefore, the allocation of the risk should be different. The aim of the article is to identify other solutions, such as the reversal of the burden of proof, proportional liability or the loss of chance doctrine, and to verify whether any of these concepts can be useful as far as Polish law is concerned.