The Philosophy of the Burden of Proof in Medical Liability for The Harm Caused to the Unborn: Conversation With Experts as an Epistemological Paradigm of Judicial Assessment

Abstract

The traditional conception of evidence attributed paramount importance to expert opinions as the primary mechanism for incorporating specialized knowledge into the judicial process. However, the jurisprudential evolution of the Colombian high courts has fostered the recognition of expert consultation as a tool aimed at complementing and clarifying technical issues relevant to the judicial decision. Although this does not constitute an independent means of proof, its function is to provide specialized elements that allow the judge to better understand the scientific context of the litigation and to more rigorously assess other evidence. This transformation in evidentiary philosophy is especially relevant in medical liability cases, particularly those arising from obstetric care, where scientific literature has highlighted the complexity of determining the nature of perinatal neurological injuries and establishing the causal link between medical intervention and the alleged harm. In these types of disputes, the judicial decision requires a critical and integrated assessment of the available scientific evidence, through the adoption of the preponderance of the evidence, rather than relying exclusively on the opinion of a single expert.