El dinamismo probatorio en la responsabilidad civil médica : análisis de la norma y propuesta de interpretación en aras de evitar vulneraciones al debido proceso

Abstract

The present investigation aims to carry out a study of the legal-procedural practice defined as dynamic burden of proof within the framework of medical liability. More precisely, it addresses the study of actual procedural regulations, in the framework of evidence law, that deal with problematic features of the legal practice on this professional field. The primary objective of this work is to offer a proper interpretation of the procedural law that is in line with the core principles of the Colombian law order and, specially, that avoids due process violations. The reversal of the burden of proof –which has been widely discussed and applied by the legal practitioners– implies a modification of the factual basis of the substantive norm and, therefore, has important implications that can lead to the infringement of the basic tenets of the procedural law. It is for this reason that the definition of a set of criteria for the correct interpretation of current legislation appears to be an urgent task. Considering that the dynamic burden of proof is built on the concepts of proof availability and proof proximity –which are valid reasons for the reversal of the burden of proof–, the duty of cooperation which must inform the recollection of evidence should be clear and well-defined in order to be useful in ascertaining the procedural truth.