Medical treatment (German law)

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This article deals with the legal relationships in connection with medical therapy in Germany.

General civil law issues

It concerns with the treatment from the relationship doctor-patient usually a treatment contract , on principle, the rules of the employment contract are to be applied ( § 630a ff BGB ). The doctor employed in the hospital works on the basis of his / her employment contract with the hospital operator (e.g. the city; the association); The patient usually concludes a mixed contract with the hospital operator , which is primarily a service contract, including medical treatment (so-called total hospital contract).

The doctor owes neither a certain healing success (e.g. disease healing in the narrower sense, nor freedom from pain or restoration of certain bodily functions), but only therapy according to the recognized rules of medical medicine . Otherwise the patient has a claim for damages against the doctor or the hospital because of a medical malpractice .

Health care costs

With regard to the cost of medical treatment, the doctor-patient relationship is usually determined by the statutory health insurance system, if on the one hand the patient is a member there (approx. 90% of the population in Germany) and on the other hand the doctor is a member of the statutory health insurance association . The treatment costs are billed directly to the health insurance company , which therefore usually provides the health insurance benefits as benefits in kind. The legal basis is essentially the fifth book of the Social Security Code - statutory health insurance ( SGB ​​V )

This principle is broken if co- payments are to be paid or the patient has chosen to be reimbursed. In this case, the patient initially only has a legal relationship with the contract doctor / contract dentist and receives reimbursement of the costs incurred by him from the health insurance company. This is otherwise a typical structural feature of private health insurance , but is sometimes broken by cost commitments directly to doctors and hospitals.

In the case of private medical treatment , the general terms and conditions (GTC) are usually based on the fee schedule for doctors (GOÄ) or fee schedule for dentists (GOZ). According to these principles, private health insurances and state aid agencies (for civil servants, judges) reimburse treatment costs .

Criminal law issues

Bodily harm during therapeutic measures and examinations

According to German jurisprudence and parts of legal doctrine, an act or failure to act can constitute an offense of bodily harm if, as a whole, an improvement in health is sought or even achieved. This also applies if a doctor only wants the best for his patient and acts according to the recognized rules of medical medicine. This is justified by the fact that an invasive examination or therapeutic treatment requires consent , otherwise it is usually not only a matter of factual but also unlawful and therefore punishable bodily harm according to § 223 StGB .

Part of the legal doctrine takes a different point of view. She does not want to see the successful medical treatment as a physical injury.

If consent is no longer possible, a justification based on the principle of presumed consent comes into question according to both views . The decisive factor in these cases is the judicial assessment as the person concerned would probably have decided himself. The individual needs, wishes and ideas of the person concerned must be taken into account. If there are no indications to the contrary, it can be assumed that the person concerned would have wanted what was objectively reasonable. It is irrelevant if it turns out afterwards that the person concerned would have decided differently.

Impunity through patient consent

Consent to treatment by a doctor must be given by the person concerned (the patient himself) in the case of existing legal care (Section 630d BGB). Before each treatment, the patient must give his consent (exception: emergency treatment after presumed consent). According to § 228 StGB, this leads to the treating doctor being exempt from punishment.

In the case of patients capable of giving consent , the doctor must observe the currently expressed will of the appropriately informed patient, even if this will does not coincide with the diagnostic and therapeutic measures required from a medical point of view . However, consent is ineffective if the patient demands measures that are not justifiable according to the medical rules of the art.

The declaration of consent should always be made expressly. The effective consent of the patient is a mandatory requirement for medical treatment. A consent can only be effective if the patient previously informed was or has clearly waived.

The living will has been regulated in Germany since September 1, 2009 in Section 1901a Paragraph 1 Clause 1 BGB.

The patient's ability to understand and control

Only those who are capable of giving consent can effectively consent. Supervised persons and minors are also able to give consent if they have the necessary insight (the latter usually from 14 years of age). Only those who are capable of giving consent can effectively refuse treatment.

In addition, there may be an inability to consent for certain complex interventions, but not for other simple measures. For example, someone who is mentally retarded and has a cut will be able to tell that it needs treatment. In contrast, he will find it difficult to grasp the meaning and purpose of radiation therapy . In the case of people with mental illness , it is also possible that they understand the information provided, but cannot make a free decision about treatment because of internal constraints caused by the illness.

The doctor should first assess this ability in individual cases, because he is the one whose possible criminal liability is at issue. However, in the case of a patient under legal supervision, the caregiver has to decide for himself whether the carer is able to consent to treatment or not, since he has to represent the interests of the cared for. If the person being cared for could consent to the treatment in this sense, but if he refuses this consent, the carer cannot give his consent as a substitute; not even if health care is one of his responsibilities .

Emergency life saving treatment and presumed consent

Only when it is a matter of life or death and action must be taken immediately, there are other criteria in the case law. If there are no declarations from the patient, from a legal representative or an authorized representative, or if these cannot be obtained in good time, the doctor must act in accordance with the presumed will of the patient in the specific situation. If the presumed will of the patient cannot be determined on the basis of the criteria mentioned, the doctor acts for the patient's best if he takes the medically indicated measures. However, as soon as there are indications of an opposing will of the patient, this will must be respected and acted accordingly, no matter how “unreasonable” this will is.

Consent requires patient information

Patients have the right to receive understandable, knowledgeable and appropriate information and advice from their doctor in a personal conversation prior to treatment. The boundaries of the duty to provide information are fluid and depend on the individual case.

Depending on the disease, the education includes:

  • the appropriate prevention,
  • the diagnosis ,
  • Benefits and risks of diagnostic measures,
  • Benefits and risks of the treatment as well as the drugs and medical devices used
  • Chances of treatment compared to the course of the disease without treatment,
  • the treatment of the disease and its alternatives, insofar as they are associated with different risks, and
  • any necessary follow-up treatment.

The information and advice must also be understandable for patients who cannot communicate with the doctor using the language. The doctor must make sure that the patient understands and has understood the information. The doctor is not obliged to call in an interpreter and can refuse treatment unless it is an emergency.

Time of clarification

The patient must be informed in good time before the treatment. The right time will depend on the type of treatment and its urgency. If an intervention is planned, clarification must take place at the latest when the decision is made to carry out the intervention. Even in the case of minor interventions that are carried out as an inpatient, clarification must take place in good time the day before. In the case of outpatient interventions, on the other hand, information can only be provided on the day of the operation.

Scope of education

The scope of the clarification depends in particular on the severity and urgency of the intervention. The more urgent the intervention, the less time there is for the information; Nevertheless, apart from exceptional cases, clarification must be provided.

In general, an explanation “by and large” is sufficient. The patient does not have to be informed about medical details; it is sufficient if the information that is important for the patient's lifestyle is given. These are in particular the benefits of the treatment, its risks, the effects and behavioral instructions for the rest of life. About risks of treatment that are well known in the population, e.g. B. the risk of wound infections or embolism does not need to be clarified.

The doctor must also provide information about the benefits and risks of using drugs and medical devices. Patients have the right to ask questions in addition to the general information obligation of the doctor. The doctor is obliged to answer these questions truthfully, completely and understandably.

Renouncing the education

Patients have the right to forego medical information. Patients should make this clear. The doctor does not have the right to refrain from providing information at his own discretion if the information would seriously and specifically endanger the life or health of the patient concerned.

Inability of the patient to give consent

Lies with the patient under legal supervision the necessary inspection and control capability before, he can only personally explain the consent or that refusal, but not the supervisor. If this ability is lacking, the supervisor must be informed accordingly by the doctor. In such cases, the doctor is not subject to medical confidentiality vis-à-vis the supervisor ( Section 203 StGB). The same applies if the patient has issued a health care proxy that expressly includes the decision on medical questions ( Section 1904 (2) BGB).

Supervision court approval

The supervisor (like an authorized representative) must have particularly dangerous treatments approved by the supervisory court ( Section 1904 (1) and (2) BGB) if there is a disagreement between the supervisor and the doctor about the interpretation of the patient's will. In the final report of the federal-state working group “Care Law”, psychotropic drugs are named that are classified as requiring approval because of their severely harmful side effects. Particularly potent psychotropic drugs such as Leponex and lithium, long-term treatment with neuroleptics and anticonvulsants, e.g. B. Glianemon , Atosil and Neurocil , due to the associated risk of long-term effects , to be included in a list in the law "in order to curb unscrupulous (uncontrolled) use".

See under: Approval of therapeutic treatment

Exception in the case of urgent treatment

If there is particular urgency, the supervisor (or authorized representative) may exceptionally consent to dangerous treatments without judicial approval. In these cases, approval is not required retrospectively ( Section 1904 (1) sentence 2 BGB).

Permissibility of compulsory treatment

Forced treatment is a measure of deprivation of liberty in psychiatry . Methods of external coercion can also restrict self-determination . This raises the question of legitimacy in both therapeutic and legal terms.

Specific questions

Drug testing

The scientific testing of drugs on the supervised person is regulated in §§ 40–42 of the German Medicines Act (AMG). The supervisor can only consent to the clinical testing of a medicinal product for the person being cared for under strict conditions ( Section 41 (3) No. 2 AMG).

Termination of pregnancy

If the general prerequisites for an unpunished termination of pregnancy are met, the woman's consent is important. If she is unable to give consent, it is disputed whether the supervisor can consent in her place; this will be answered in the affirmative if the abortion does not contradict the wishes of the cared for ( § 1901 BGB). An approval of the supervision court according to § 1904 BGB is usually dispensable due to the lack of danger.

Organ donation

The admissibility of organ donations from the body of the person being cared for is not regulated by law; it is based on the well-being of the person in care, § 1901 BGB. In the event of inability to give consent, the consent of the supervisor is required (the task group "curative treatment" is not sufficient, the express task group is required, e.g. "organ donation of the left kidney to the daughter ..."). Since the absence of an organ always represents serious and long-lasting damage to health, the approval of the supervisory court is always required.

There is no supervision with the task of “issuing an organ donor card”.

Housed patients

If the medical treatment requires deprivation of liberty within the meaning of Section 1906 (4) BGB (e.g. because the patient has to be handcuffed after the operation or prevented from leaving with sleeping pills), the Supervision Court's approval pursuant to Section 1906 is also required BGB necessary. So there are cases in which both the approval according to § 1904 BGB and § 1906 BGB are required, as well as cases in which only one or the other (or no) approval of medical treatment is required.

See also

Individual evidence

  1. ↑ BGH JZ 1987, 877; Laufs: The development of medical law 1993/1994 in NJW 1994, 1562.
  2. ↑ consistent case law; e.g. BGH judgment of July 5, 2007 , Az. 4 StR 549/06, full text.
  3. ↑ Legal Lexicon. Presumed consent
  4. ↑ BGH, judgment of June 29, 1996 ( Memento of the original of July 18, 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. , Az. 4 StR 760/94, full text; BVerfG, decision of July 25, 1979, Az. 2 BvR 878/74, BVerfGE 52, 131 , 170 - Doctor's liability process . @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  5. ↑ German Medical Association , Principles for medical terminal care , as of May 1, 2004.
  6. ↑ BGH JZ 1991, 983, since February 26, 2013 also regulated in § 630e BGB.
  7. ^ BGH, judgment of February 16, 1993, Az. VI ZR 300/91; NJW 1993, 2372.
  8. ↑ BGHSt 12, 382; BGH, judgment of December 17, 1991, Az. VI ZR 40/91; NJW 1992, 743.
  9. ↑ Schitz: The leasing company has full claims for damages against the other party involved in the accident, even if the driver is at fault , NJW 1994, 301.
  10. ↑ BVerfG, judgment of January 3, 1980, Az. 2 BvR 1022/79; NJW 1980, 633; BGH, judgment of November 19, 1985, Az. VI ZR 134/84; NJW 1986, 780 re. Embolism; BGH, judgment of January 8, 1991, Az. VI ZR 102/90; NJW 1991, 1541 re. Infection.
  11. ↑ Final report of the federal-state working group “Care Law” ( Memento of the original from November 5, 2006 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. (PDF; 905 kB) on the 74th Conference of Justice Ministers in June 2003, from p. 159. @1@ 2Template: Webachiv / IABot / www.dnoti.de
  12. ↑ Details cf. Holzhauer NJW 1992, 2325.
  13. ↑ cf. Dreher / Tröndle, commentary on the StGB margin no. 14 before § 218
  14. ^ AG Mölln FamRZ 1995, 188.

literature

Books

Magazine articles

  • Amelung: Problems of the ability to give consent; RuP 1995, 20
  • Baumann: Lack of legal basis in the case of compulsory medical treatment of inmates; NJW 1980, 1873
  • Baumann / Hartmann: The civil law safeguarding patient autonomy at the end of life from the point of view of notarial practice; DNotZ 2000, 594
  • Braun / Fiala / Müller: Approval requirements in the field of med. Health care; Rpfleger 2002, 597
  • Bühler / Kren / Stolz: euthanasia - terminal care - living will; BtPrax 2002, 232
  • Coeppicus: discontinuation of treatment, presumed will and right to care; NJW 1998, 3381
  • Dose: drug supply as curative treatment; FamRZ 1993, 24
  • Eisenbart: Representation in health matters; MedR 1997, 305
  • Gründel: consent of the supervisor to the termination of life support measures; NJW 1999, 3391
  • Hartmann: Advance Wills and Psychiatric Disposals - Are they binding for the doctor? NStZ 2000, 113
  • Kern: The importance of the BtG for medical law, MedR 1991, 66
  • Rehborn: The Patient Rights Act ; Health Law 2013, page 257
  • Schreiber: The drug supply as a curative treatment according to § 1904 BGB; FamRZ 1991, 1014 and discussion on this in FamRZ 1993, 26
  • Thar: Consent to medical treatment - by the person being cared for - by the carer; BtPrax 1994, 91
  • Uhlenbruck: Advance consent and representation for consent to a therapeutic intervention; MedR 1992, 134
  • Weidhaas: The health insurance doctor between fraud and infidelity; ZMGR 2003, 52
  • Wojnar / Bruder: Medical activity and the BtG, BtPrax 1993, 50
  • Wolter-Henseler: Dangerous Medical Measures? BtPrax 1995, 168
  • ders .: Care law and drugs - when is drug treatment subject to approval? BtPrax 1994, 183

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