Doctor's Liability (Germany)

Under medical malpractice refers to the civil liability of a doctor towards a patient in violation of medical due diligence.

When a doctor treats a patient , from a legal point of view, a treatment contract is concluded. From the treatment contract, the doctor owes compliance with the necessary due diligence during treatment. This also applies if the doctor does not ask for a fee or if the fee is borne by a third party, such as a social security agency. On the basis of this contract, a service contract , the doctor does not owe a certain success - the healing of the patient - but professional efforts with the aim of healing or alleviating complaints. If he violates the duty of care, the doctor is obliged to pay compensation to the patient . This liability can be based in the same way on unlawful acts ( § 823 BGB ), since the doctor then unjustifiably affects the health or injures the physical integrity.

The medical duties and possible violations are numerous. They can essentially be grouped into treatment errors , failure to provide information, documentation errors and other breaches of duty.

Medical malpractice

The doctor owes a professional treatment of the patient, but not a concrete success. He owes a treatment according to the state of the medical knowledge of the respective medical specialty (so-called specialist standard ). In the doctor's liability process, it is therefore usually necessary to commission a medical expert with an opinion. Even outside of legal proceedings, the professional liability insurances recognize a treatment error i. d. Usually only if an expert opinion is presented that proves this. This can be an expert commissioned by the medical arbitration board, an expert from the medical service of the health insurance company or another medical expert. As part of the report, it is checked whether the doctor correctly applied the scientifically tested and recommended clarifying (diagnostic) and therapeutic measures that were valid at the time of treatment. If the violation of medical art is affirmed, the expert will further check whether this violation of duty has causally caused damage to health. If this is the case, the doctor has made himself liable for damages to the patient . The compensation also includes reasonable compensation for pain and suffering .

Clarification failure

Every medical measure interferes with inner life processes or violates the physical integrity of the patient. It therefore constitutes an offense of bodily harm in both civil and criminal law ( § 223 StGB ) and is only justified with the consent of the patient ( § 228 StGB). However, consent requires that the patient is informed about the intended measure, its chances of success and the possible negative consequences. Unless they are irrelevant, the doctor must explain these questions to the patient. The level of detail of the explanation depends on u. a. According to the necessity of the intervention: While there is no obligation to provide information in the case of an emergency operation on an unconscious accident patient, in the case of cosmetic surgery, for example, particular care must be taken about the risks, the costs of the intervention and the chances of success.

This intervention explanation justifies the medical treatment of the doctor and must therefore be proven by the doctor. A clarification error leads in principle to the ineffectiveness of the consent. The patient is therefore presented with a declaration of consent for signature before the intervention, which - fully completed and signed - provides the necessary evidence for the doctor. The clarification can also be supported with other evidence , such as an entry in the documentation or a testimony .

The procedure must be explained in good time so that the patient can freely decide. When agreeing on the operation, general information should be given in the case of operations, apart from emergencies, on the day before the operation. Before treating children, their parents must be informed; from the age of 14, the young people must also give their own consent. In the event of language difficulties, the doctor must , if possible, call in a translator so that the patient understands the required information. In emergencies, the duty to provide information will be limited to what is feasible; in the case of inaccessible patients, relatives or an advance directive can provide information about the presumed will of the patient. In the case of interventions that can be postponed, a temporary supervisor must be appointed for patients who are unable to consent or the consent of the supervising court must be obtained.

The clarification talk cannot convey any detailed medical knowledge. It is intended to strengthen the patient's position in the asymmetrical patient-doctor relationship : The doctor suggests the medical measures and has to explain the intended treatment in plain language. In this way, the patient should be able to get an idea of the proposed measures and the associated risks as well as possible treatment alternatives from a layperson's point of view.

If the information has not been provided, the doctor can claim that the patient would have consented to the therapy if the information had been given ( lawful alternative behavior ). For his part, the patient can assert that he would have refrained from treatment in this case.

Documentation error

The doctor has to document his findings, the therapeutic measures taken and any questions that need to be clarified. In this way, he should not only be accountable to himself for the treatment of his patient, but also enable another doctor to continue his treatment without any problems in the event of his departure. This documentation, which also includes laboratory results and printouts of examinations with imaging procedures such as ultrasound or X-rays, is to be kept carefully by the doctor. If this is done inadequately, one speaks of a breach of the documentation obligation .

Correspondingly prompt, complete and consistent documentation from the doctor is available as evidence. It can be used as evidence in the process by both the patient and the doctor.

Any gaps in the documentation omit this proof. The most unfavorable alternative is then assumed at the expense of the doctor. This regularly leads to a reversal of the burden of proof : it is not the patient who has to make a mistake by the doctor, but rather the doctor now has to prove that he acted correctly in this case too.

Other breaches of duty

The breach of other duties, such as organizational duties, justifies the patient's claim for damages against his doctor. This includes, for example, compliance with office hours, referral from the family doctor to a specialist or timely admission to a hospital.

Enforcement of claims

Negotiations, arbitration boards and medical liability process

The enforcement of claims of the patient against his doctor takes place in most cases by way of negotiations, mostly between the patient or his lawyer and the doctor's liability insurance . In the event of rejection, the patient has a free procedure at the responsible State Medical Association or State Dental Association , in which his allegations are examined by (at least) one expert. However, the prerequisite is that the doctor agrees to the arbitration procedure. The assessment of the arbitration board is only a non-binding recommendation that neither side has to accept. There is also a between the possibility in dentistry with statutory health insurance health insurance companies and dentists' associations amicably ordered appraiser to commission and an opinion of the medical field medical service of health insurance to have prepared. Ultimately, there is still the possibility of civil action. The court then makes a binding decision on the case for both parties.

Since medical liability law is a specialty, most of the regional courts have established special chambers that deal exclusively with such processes. However, regional courts are only responsible for amounts in dispute above € 5000.

Burden of proof and easing of the burden of proof

The question of who has to prove the existence or non-existence of the prerequisites for a claim for damages is of great importance in the legal dispute. Both for the question of the violation of the rules of medical medicine and for the causal connection between the treatment error and the damage to health, the patient is generally required to provide evidence, that is, when making a claim for damages , the patient must prove that the doctor has his complaint because of a specific error caused.

The patient must also prove the fault of the doctor and the causality mentioned above .

It is not enough to say that therapy has failed. The patient cannot request a treatment method that is only established after his treatment.

He will have to rely on medical experts in his arguments . As a rule, it is ultimately not the doctor but his liability insurance who will pay for the economic damage. Even in legal disputes under medical liability law, a rejection request can be made against the expert due to concerns about bias , if this is justified.

In rare cases, the patient benefits from what is known as prima facie evidence. So if an established medical error can typically be used to infer the presence of fault and causality on the part of the doctor, prima facie evidence applies.

The burden of proof is reversed only if the patient can prove a gross treatment error (BGH earlier: “Easier of evidence up to reversal of the burden of proof ”). Then the doctor has to prove that the damage sustained was not due to a gross malpractice. The case law assumes that everything that was not documented by a doctor, but has to be documented, actually did not take place. In this respect, documentation errors are often the beginning of a successful medical liability process because they can become the basis for the assumption of a gross medical error. However, the courts relatively rarely accept the existence of a gross malpractice.

Failure to collect or secure control results leads to a reduction in the burden of proof in favor of the patient. In the case of diagnostic errors, there are the best chances of winning a doctor's liability litigation.

From the practice of the arbitration boards it is known that in about 1/3 of all submitted cases a violation of medical due diligence is affirmed. There are no official statistics on litigation.

literature

Wolfgang Bauer: The criminal law assessment of medical curative intervention . Publishing house Dr. Kovac, Hamburg, 2008, ISBN 978-3-8300-3948-8
Karl-Otto Bergmann: The doctor's liability. A guide for doctors and lawyers . 4th edition. Springer, Berlin et al. 2014, ISBN 3-540-40826-6
Alexander P. Ehlers, Maximilian G. Broglie (eds.): Medical liability law. Basics and practice . 4th edition. Beck, Munich 2008, ISBN 978-3-406-56388-1
Geigel - Wolfgang Wellner, The Liability Process , 25th edition, Munich 2008, Verlag CH Beck, ISBN 978-3-406-56392-8 , Chapter 14: Applications of Section 823 (1) BGB, III: Doctor's Liability, Rn. 211 ff.
Karlmann Geiß (greeting), Hans-Peter Greiner (editing): Medical liability law . (= Current law for practice). 6th edition. Beck, Munich 2009 ISBN 978-3-406-58195-3
Dieter Giesen: Medical Liability Law. Civil liability from medical treatment in the Federal Republic of Germany, Austria and Switzerland . 5th edition. Mohr Siebeck, Tübingen 2007, ISBN 978-3-16-149119-1
Otto Palandt (greeting) - Sprau: Civil Code. Commentary with ancillary laws , 70th edition, Munich 2011, ISBN 978-3-406-61000-4 , § 823 BGB, marginal number 134 ff .: medical liability
Theresa Riegger: The historical development of medical liability . Dissertation, University of Regensburg 2007 ( digitized version )
Erich Steffen / Burkhard Pauge, medical liability law. New lines of development of the BGH case law . 12th edition. RWS Verlag, Cologne 2013, ISBN 978-3-8145-7837-8
Martis, Rüdiger / Winkhart-Martis: Medical Liability Law, Case Group Comment , 3rd Edition, Cologne 2010, ISBN 978-3-504-18051-5