Medical education

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The medical education includes informing a patient about the type, extent and severity of his illness, diagnostics and possible therapeutic measures and their respective benefits and risks in the context of therapeutic treatment . The patient must be informed about all circumstances that are essential for his consent to the treatment. Behind this is the image of the self-determined patient who - with the support of the doctor - himself decides on the course of his treatment.

The treating person is obliged to provide information. According to Section 630e, Paragraph 2, No. 1 of the German Civil Code (BGB), he can also have the clarification carried out by another person if this person is trained in such a way that they can carry out the intended medical measure themselves.

Self-determination education

The self-determination information is intended to give the patient a general idea of ​​the type and severity of the illness and the possible treatment , as well as of the burdens and risks associated with planned medical measures, but also their failure to take them. It should enable him to make competent decisions about the treatment himself. A distinction is made between diagnosis, treatment, risk and progress information.

  • The "treatment information" includes an explanation of the type of specific treatment (such as medication, injection, surgery or radiation) as well as effective alternatives and an explanation of the scope of the intervention, i.e. the consequences that, from the patient's point of view, seriously affect the question of informed consent can be significant.
  • The "risk assessment" is carried out on the damage risks that may be associated with faultless medical treatment. This includes procedural complications or other harmful side effects of the procedure as well as the risk associated with failure to perform.
  • The objective burden of proof about the content of the "self-determination information" lies with the doctor. It is therefore in the doctor's interest to document the information provided in full and to have this confirmed by the patient.

Medical malpractice suspected

After the occurrence of a liability damage, the responsible practitioner must inform the patient about any recognizable treatment error in accordance with § 630c BGB, either at the request of the patient or to avert dangers that may result from incorrect treatment. Without the consent of the practitioner, these confessions associated with this patient information may not be used in criminal or fine proceedings against the practitioner. This restriction does not apply to the use in the civil law enforcement of material and / or immaterial damage claims against the treating party.

Security reconnaissance

Safety education (therapeutic education) is understood to be the education about the patient's own behavior appropriate to therapy. It is legally standardized in Germany in Section 630c (2) of the German Civil Code under the term information requirements. At the beginning of the treatment and, if necessary, during the course of the treatment, the patient must be explained in a comprehensible manner all circumstances essential for the treatment, in particular the diagnosis, the probable health development, the therapy and the measures to be taken during and after the therapy. For example, there is a need to point out any risk of intolerance, a possibly unsafe effect of the procedure (such as with sterilization ) or a change in lifestyle that is advisable by a doctor. The safety information is intended to enable the patient to behave in a health-promoting manner (such as physical rest after an operation) and also to warn him of the consequences of unhealthy behavior. The security education is a therapeutic duty, the failure or violation of which is to be assessed as a gross treatment error. It does not affect the effectiveness of the consent.

Legal aspects in the hospital

The hospital operator and the chief physicians must ensure through appropriate guidelines, instructions and controls that the medical information obligations are complied with.

The hospital is not allowed to leave its doctors up to when and how to provide information. It must determine the manner in which the information will be provided and indicate that

  • the information must take place orally and information forms may only be used as information sheets to prepare for or supplement the information discussion,
  • the information must take place in good time and in a patient-related manner,
  • particular risks are to be pointed out and
  • this must be documented individually.

Pursuant to Section 630e, Paragraph 2 of the German Civil Code, the patient must be given copies of the documents that he / she signed in the context of clarification or consent. The patient can waive this if he has been advised of the right to receive a copy. A form-based waiver, e.g. B. for ticking by the patient is not recommended for this.

Education and documentation

Section 630e of the German Civil Code (BGB), which wasnewly introducedby the law to improve the rights of patients , specifies the duty of the doctor or dentist to provide information. The patient must be informed about all the essential circumstances for the consent, in particular about the type, scope, implementation, expected consequences and risks of the measure as well as its necessity, urgency, suitability and prospects of success with regard to the diagnosis or therapy. When providing information, reference should also be made to alternatives to the measure if several medically equally indicated and common methods can lead to significantly different burdens, risks or healing chances.

It is also prescribed that the information must be given orally, personally and in good time before an intervention so that the patient can sufficiently reflect on his decision. This results in an increased documentation effort. A copy of the information sheet signed as part of the information and consent must be handed over (obligation to hand over). The clarification would come too late if, for example, it took place immediately before a significant, in particular risky, intervention. There are exceptions to this, for example in the case of an operation that cannot be postponed or life-saving first aid after an accident, provided that the patient's consent can be accepted.

Proof of education

The Munich Higher Regional Court has confirmed that proof of proper clarification has been provided if the informing doctor clearly explains his ongoing educational practice. With regard to equality of arms in the medical liability process, no unreasonable or excessive demands should be made. It cannot be demanded that the doctor remembers the specific consultation in detail and is able to describe it in detail; rather, a coherent, credible description of ongoing informational practice - possibly in connection with further clues - can be sufficient. However, if the doctor no longer specifically remembers the clarification interview and cannot comprehensibly prove that such an interview has been carried out (constant clarification practice, information sheet signed by the patient, entries in the index card), evidence of the "usual" content of an informative discussion is not sufficient to prove proper education.

The Federal Court of Justice (BGH) has made it easier for doctors to prove that their patients have been properly informed in connection with § 823 BGB . Even if the doctor cannot remember the specific conversation, the courts should believe his conclusive presentation rather than the patient's memory. According to Section 286 of the German Code of Civil Procedure (ZPO) , the court may base its formation of convictions on the information provided by the doctor about a completed risk assessment if its presentation is conclusive and “some” evidence for an informational interview is provided. This also applies if the doctor declares that he did not remember the disputed discussion. The signed consent form is - in both a positive and a negative sense - an indication of the content of the educational discussion.

Basic legal idea

Every intervention in the human body legally fulfills the objective fact of bodily harm . The intervention therefore requires the patient's consent in order to be justified and therefore not punishable. One that was already discussed in the 16th century, also in the 17th, for example by Rodrigo de Castro , and more frequently demanded in the 19th century, also includes information about a bad or poor prognosis, but the patient's consent is only effective if he knows the essential circumstances of the intervention, has understood its necessity and its risks, and has been able to precisely assess and weigh up the pros and cons. To ensure this, the patient must be informed about the risks and reasons. The more invasive the procedure, the more detailed the information must be, the less urgent the procedure, the greater the demands made on the obligation to provide information.

The self-determination information should enable the patient to understand the type, meaning, course and consequences of a treatment, not in all details, but in the main features, in order to make an informed risk assessment. In this context, the patient must also be informed about his risks, which are not entirely out of the ordinary, i.e. That is, the doctor must also point out typical, albeit rare, risks in order to allow the patient to decide whether to accept any dangers to his health.

If there is no urgency for the intervention from a medical point of view or if there is no compelling indication at all , the unlikely risks must also be discussed with the patient. The doctor must explain the reasons and counter-reasons to the patient in detail.

See also

literature

Individual evidence

  1. ↑ This express conceptual differentiation was introduced by the law for the improvement of the rights of patients. In terms of content, the information obligations are identical to the principles developed by case law and referred to as "therapeutic information" or "safety information". See justification for the draft law, Bundesrat printed matter 312/12 ( memento of October 5, 2013 in the Internet Archive ) (PDF; 632 kB), page 30.
  2. ↑ Ulsenheimer, Wienke, Schwerdtfeger: Special newsletter on the Patient Rights Act ( Memento of the original from March 27, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. ; Thieme Compliance; 2013; P. 11; (PDF) @1@ 2Template: Webachiv / IABot / www.econsentpro.de
  3. ↑ Article "Patient Rights Act: Information and obligation to hand over" Dr. iur. Elmar Biermann in Anästh Intensivmed 2013; 54: 319-322 Aktiv Druck & Verlag GmbH.
  4. ↑ Higher Regional Court (OLG) Munich decision of May 31, 2013 (Az .: 1 U 213/13).
  5. ↑ BGH, judgment of January 28, 2014, Az .: VI ZR 143/13 .
  6. ^ Medicus-Politicus: Sive De Officiis Medico-Politicis Tractatus: Quatuor distinctus Libris: In quibus non solum bonorum Medicorum mores ac virtutes exprimuntur, malorum vero fraudes & imposturae deteguntur [...]. Hamburg (Hertelius) 1662, p. 133.
  7. ↑ Michael Stolberg : The history of palliative medicine. Medical care for the dying from 1500 until today. Mabuse, Frankfurt am Main 2011, ISBN 978-3-940529-79-4 , pp. 85-91 ( The truth at the bedside ).
  8. ↑ BGH NJW 1984, 1397, 1398.
  9. ↑ BGH VersR 1993, 228, 229.
  10. ↑ BGH NJW 1984, 1395, 1396.