Supreme Court reaffirms that it remains up to the patient to prove that he was inadequately informed by the health care provider
According to Art. 8, §1 Patient Rights Act, every patient has the right to "informed, prior and free consent to any intervention by the professional". For years, however, discussion has arisen as to who bears the burden of proof when there appears to have been a misunderstanding of this informed consent.
After some time of uncertainty, The Court of Cassation in its judgment of June 18, 2020 (again) the contention that the burden of proof is on the patient, who claims not to have obtained certain information.
The basis concerns the judgment of the Court of Appeals in Antwerp of April 9, 2019, in which it was held that it is up to the doctor to prove conclusively that he informed the patient in advance of a possible complication. In doing so, the Court of Appeals was guided by the earlier cassation ruling of June 25, 2015, which proved to be a tipping point in the perennial debate.
Indeed, at the time, the Court of Cassation had to rule on the burden of proof regarding a lawyer's obligation to provide information. The position was then taken that it would follow from the rules on the burden of proof that it was up to the lawyer to prove that he had discharged his obligation to provide information, and therefore not up to the client to provide proof to the contrary.
In subsequent case law, this ruling was welcomed to the extent that it would also govern the burden of proof between health care provider and patient.
In its judgment of Jan. 11, 2019 whistled it Court of Cassation the Court of Appeals already backtracked, however, to start filling in the burden of proof in such a way.
The Supreme Court here again refers to the general rules of evidence, which prescribe that in a non-contractual context, it is up to the injured party to provide proof of the damaging event.
Retrieved from June 18, 2020 has it Court of Cassation this view sharply, leaving it to the patient to prove a negative fact. Specifically, it will have to be shown that certain information necessarily had to be provided and that the healthcare provider fell short of this obligation.
This burden of proof may at first sight seem very strict, but in practice it will be somewhat relaxed. However, it will not suffice for the patient to make it plausible that certain information was not communicated, but a certain high degree of probability will be necessary.
Therefore, the patient can prove by witnesses and or suspicions that with a probability bordering on certainty the obligation to inform was not met, so it will not suffice to simply state that the information was not communicated.
Therefore, the case now seems to be settled. However, some caution is still required with respect to the foregoing considerations since the judgment only pronounces on the burden of proof concerning a fault and, more specifically, an alleged failure to comply with a non-specific duty to provide information. Therefore, this line of reasoning cannot be simply extended to other relationships such as, for example, this one where there is a specific obligation to provide information.
If you would like more information, you can always contact our specialized lawyers at info@bannister.be or by calling 03 369 28 00
Mr. Thomas MACHTELINCKX
July 10, 2020
