The theory of duty - obligation of the parties, in medical liability processes

Abstract

Medical liability processes, by their nature, have a high degree of difficulty in evidentiary matters, which is why the different courts have adopted theories to try to solve said problem; to this extent, the positions adopted have varied significantly. One of the most recent is the duty- obligation of the parties to provide evidence, which differs from the dynamic burden of proof
theory. For this reason, an analysis of the preponderant theories in this matter was carried out in order to later develop in a timely manner the theory of duty-obligation of the parties to provide evidence, contemplated in Sentence C 218282017 of the Supreme Court of Justice, taking into account their main characteristics, their legal effects, and their differences with the dynamic
burden of proof. In this study, it was evidenced that this new evidentiary theory moves away from the dynamic burden of proof, and demarcates a new position of the Supreme Court of Justice in medical liability processes.