If the court in cases of medical disputes neglects to consider reasons for shifting the burden of proof and does not properly justify its decision in this regard, it thereby violates the right to judicial protection under Article 36 par. 1 of the Charter of Fundamental Rights and Freedoms, the right to equal standing of parties to a proceeding under Article 37 par. 3 of the Charter, and the right to a fair trial under Article 6 par. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Summary:

I. The complainant is a minor child that was born in after very complicated delivery. After the first urgent signs that labour was starting the mother was brought to the Boskovice Hospital, where, however, delivery was not completed, and the mother was transferred to the University Hospital in Brno; the child was born by Caesarean section, with severe hypoxic brain damage, with lifelong consequences. In his action complaint, the plaintiff sought compensation for damage to health, or one-time damages for pain and reduction in social functioning in the amount of CZK 198,000 with appurtenances. He sued both the Boskovice Hospital and the Emergency Medical Service of the South Moravian Region, which transported his mother to the University Hospital in Brno. He claimed that the major cause of the adverse effect in the form of damage to health was the faulty procedures of both defendant medical facilities. Specifically, he claimed that the Boskovice Hospital did not provide due care to him and his mother, and that the subsequent transportation to the University Hospital in Brno was incorrectly routed by the emergency service. The first-level court dismissed the action; the appeals court subsequently granted a substantial part of it, but its decision was quashed by the Supreme Court upon appeal on points of law by the defendant. Subsequently, the appeals court, bound by the legal opinion of the Supreme Court, dismissed the action again; in its opinion, the complainant did not prove that the illegal conduct by the Boskovice Hospital had a causal link with the damage to health, or that it was the decisive cause of it. The Supreme Court denied the complainant’s appeal on a point of law.

II. The Constitutional Court disagrees with the second appeals court, which reached an "unambiguous" factual conclusion that there was no causal link between the illegal conduct by the Boskovice Hospital and the damage to the complainant’s health. On the contrary, in the proceeding before the appeals court, the expert concluded that there was a causal link between the hospital’s illegal conduct and the damage to health. Thus, the complainant’s failure in the lawsuit did not result from the fact that a conclusion that a causal link existed was ruled out, but from the complainant’s failure to meet the burden of proof. However, in view of the factual circumstances of the case and the illegal conduct of the Boskovice Hospital, this burden of proof should not have been on the complainant at all. The rules on the allocation of the burden of proof in a case of proving the conditions for liability for damage are based on statutory regulation. According to the legislation, the general rule is that the injured party is required to claim illegal conduct by the injuring party, the occurrence of damage, and the existence of a causal link between these facts, and is required to prove his claims. The Constitutional Court stated that in particular cases these general rules on the allocation of the burden of proof may be inconsistent with constitutional law principles of a fair trial. That is the case, for example, in medical disputes, where on one side is a patient, claiming that the illegal conduct of the medical services provider caused him damage, and on the other side is a medical services provider that violated its obligation to properly maintain the patient’s health care documentation. In such cases, where the two sides’ abilities to present evidence are in fact unequal, a court can decide to shift the burden of proof for proving the (non)fulfillment of one of the conditions for liability for damage. Of course, shifting the burden of proof is a means of ultima ratio and is appropriate only when the patient’s claim cannot be proved even by imposing an obligation to explain on the opposing party under § 129 par. 2 of the Civil Procedure Code.

In the adjudicated case, doubts arose as to the illegal conduct of the Boskovice Hospital. The complainant’s success in the dispute depended on proving his claim of a causal link between the breach of obligation and the harmful consequence, and the main evidence of the state of health of the foetus and the mother at the time of admission to the Boskovice Hospital was the relevant health care documentation. However, that was not available, partly because the health care personnel were not completely prepared for the announced arrival of the complainant’s mother, and primarily because the hospital did not conduct any examination except a cardiotocographic exam. Moreover, the only proof (the record of the KTG performed) was lost, so the obligation to properly maintain health care documentation, arising from § 53 et seq. of Act no. 372/2011 Coll., on Health Care Services, was not fulfilled.

The Constitutional Court believes that under the cited factual circumstances, the general courts were obliged to consider the possibility of shifting the burden of proof concerning the state of health of the foetus, the mother, and the newborn child during the hospital stay, and state its deliberations in this regard in the reasoning of its decision. As they did not do so, they thereby violated the complainant’s right to judicial protection under Article 36 par. 1 of the Charter, the right to equal standing for under Article 37 par. 3 of the Charter and the right to a fair trial under Article 6 par. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

III. The judge rapporteur in the case was Jan Musil. No judge filed a dissenting opinion.