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If Nothing is Stated in a Medical Report, the Court (Even Through an Expert) will not Learn Anything from it

The First Panel of the Constitutional Court (Justice-Rapporteur Jaromír Jirsa) upheld the constitutional complaint and annulled the resolution of the Supreme Court and the judgments of the Regional Court in Prague and of the District Court in Nymburk as they violated the petitioner's right to judicial protection under Art. 36 (1) in conjunction with Art. 37 (3) of the Charter of Fundamental Rights and Freedoms.

The petitioner visited a dermatologist in August 2016 with a suspicious skin lesion on his forehead and was diagnosed with a benign keratoma. As it later turned out, it was in fact a malignant melanoma which required treatment which was more extensive and invasive because it had not been diagnosed earlier. The essential claim of the petitioner was therefore the absence of a histopathological examination of the initially removed lesion which could have led to earlier detection of the disease with subsequent less invasive and probably more successful treatment. However, the petitioner was unsuccessful in his claim by which he had sought in the proceedings before the ordinary courts payment of the sum of 563105.32 CZK, with accessories, as compensation for non-pecuniary personal injury caused by the dermatologist.

The courts concluded that the procedure chosen by the intervening participant alleged by the petitioner to be non lege artis could not be verified in view of the brief nature of the medical report, and at the same time the courts held that the forensic expert did not find any deficiencies in the procedure taken by the adjacent participant (based on the documents available to the forensic expert), with the result that the petitioner's motion was dismissed for failure to discharge the burden of proof. The reason for the dismissal of the motion of the petitioner was only taken into account in the decision on costs as the court did not order the petitioner – the unsuccessful party to the proceedings - to pay the defendant's costs on the grounds that the lack of evidence need not had occurred if the doctor had properly described the skin lesion and kept better medical records. The petitioner appealed to the Constitutional Court after unsuccessfully exhausting all remedies. He argued in his constitutional complaint, in particular, that the general courts had erred in concluding that the burden of proof in respect of the alleged malpractice in the provision of medical care caused by the intervening participant should be to the detriment of the petitioner who could not have influenced it in any way, and he also challenged the expert opinion and the assessment contained therein.

The Constitutional Court concluded that the constitutional complaint was well-founded. It considers the courts' conclusion that the petitioner did not discharge the burden of proof to be premature. In order to preserve the principle of equality of the parties, it was the duty of the general courts to consider the possibility of reversing the burden of proof (cf. the Constitutional Court's finding in Case No IV. ÚS 14/17 of May 9, 2018: External link icon  ). In fact, the failure of the petitioner to date is due to the lack of evidence caused by the fact that the medical report in question contains almost no information, even though the statutory obligations of a doctor in providing health care include the proper maintenance of medical records. The expert witness found the doctor's practice to be lege artis only because of the lack of information based on which she could otherwise had been able to reach a different conclusion.

The matter now returns to the District Court in Nymburk. It will be for the ordinary courts to supplement the evidence as to the specified ambiguities in the expert opinion, to consider the so-called reversal of the burden of proof, and, if necessary, to provide the participant with the necessary procedural instructions. According to the Constitutional Court, unanswered questions remained in the proceedings as to how the expert herself would have acted in the case, whether or not she would have perceived the petitioner to be a patient at risk under the circumstances described by him, and whether and why she would have supplemented the course of the medical examination of the petitioner and the medical report compiled thereafter, if necessary. Depending on the results of the supplemented evidence, the ordinary courts will then - if the factual situation remains unclear - consider to whom the lack of such evidence should be attributed and will invite the participant to supplement any further evidence; if the burden of proof is not sustained, the party who - in the court's discretion - fails to discharge the burden of proof will lose in the proceedings.