Reversal of the burden of proof: what it is and its impact
Quick facts
- Definition
- A procedural rule under which the defendant, not the accuser, must prove a certain fact.
- Where it appears
- In consumer law, when the judge recognizes the patient's difficulty in proving the case.
- Practical effect
- It is usually the clinic that must show it informed, assessed and acted with care.
- Defense
- Complete patient record, signed forms, photo documentation and written instructions.
In a lawsuit, the accuser normally has to prove what they claim. Reversal of the burden of proof changes that: the judge can order the other party, here the clinic or the professional, to prove they acted correctly. It is provided for in Brazil's Consumer Protection Code and can be applied when the consumer has difficulty producing evidence.
Why does documentation become your defense?
In the relationship with the patient, the professional is the one who holds the information. If a conflict arises, the professional will be the one who has to show that they assessed, explained the risks and carried out what was agreed. The duty of care in informing is the duty to inform, and the proof of it lies in the informed consent and the patient record.
What precautions prevent problems?
Do not promise results, record the conversation about limits, and keep the documents for the required period, as in patient record retention. If a simulation is used, record that the patient was told it is illustrative. More in informed consent in HOF and legal defense.
Frequently asked questions
What does reversal of the burden of proof mean in a lawsuit against a professional?
It means the judge may require the professional or clinic to prove they acted correctly, instead of requiring the patient to prove otherwise. That is why documentation is essential.