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Medical law deals with the question of whether a patient can assert claims for damages (compensation for pain and suffering, loss of earnings, care costs, etc.) against a hospital or doctor due to a treatment error or a lack of information about the risks of an intervention.
Treatment errors
When you seek medical treatment, you automatically conclude a treatment contract. This contract is legally classified as a service contract. In contrast to a contract for work and services, the doctor does not owe any success, i.e. no cure. It is therefore only in rare cases that a treatment error can be inferred from the result of a treatment. Rather, the decisive factor is whether the medical standard was adhered to during treatment. The doctor assumes responsibility for ensuring medical standards during treatment. If the standard is not met and this results in damage to health, the patient is generally entitled to compensation under medical law.
What is meant by “medical standard”?
Case law defines the standard as the respective state of scientific knowledge and medical experience that has proven itself in practice and whose application is necessary to achieve the medical treatment objective. The standard must correspond to the respective specialist area. In this specific case, this ultimately means: guidelines, guidelines and more guidelines. These can be found in particular at the German Association of Scientific Medical Societies(http://www.awmf.org/leitlinien/leitlinien-suche.html). Guidelines from the German Medical Association and the Federal Committees of Physicians and Health Insurance Funds can also be consulted. The patient guidelines of the University of Witten/Herdecke(http://www.patientenleitlinien.de/) also provide good points of reference. Although not all guidelines and directives are binding, most of them offer a good introduction to the examination of medical errors.
Information about the risks of the procedure
Every patient can decide for themselves whether and how their physical integrity is interfered with. For this reason, the patient must consent to any intervention on their physical integrity. An intervention without effective consent is unlawful. As consent is only effective if the patient is aware of the risks involved, the doctor must inform them of the risks.
How must information be provided in accordance with medical law?
Roughly speaking, the information must be provided verbally, in good time and in a comprehensible manner. Further details can be found in § 630e BGB. There are also numerous rulings in case law that specify the requirements. For example, information must be provided for planned operations. at the latest on the day before the operation by approx. 4 pm. The patient must be able to calmly weigh up the pros and cons of an operation and, if necessary, discuss them with third parties.
What does medical law require to be informed about?
The patient must be given a picture of the severity and direction of the risks to be expected. The more serious the risks of the procedure are (e.g. permanent damage to health, loss or impairment of important organs), the more detailed the information must be. Section 630e (1) of the German Civil Code (BGB) contains a definition of this, although it is naturally general. In individual cases, the respective content of the information must be substantiated with case law and specialist literature. For further information on medical law, please contact Mr. Brandl (phone: +49 (0)221-9433 80 20).
Decisions
Judgment on the medical necessity of a DVT scan (defense against claim)
Covering the costs of Lasik surgery
The costs of a Lasik operation can be reimbursable if the private health insurance is based on the MB/KK 94 (sample conditions 1994 medical expenses and daily hospital allowance insurance).
(LG Dortmund, judgment of October 5, 2006, Ref.: 2 S 17/05
Doctor’s duty to inform about side effects of medication
In the case of possible serious side effects of a medication, the doctor prescribing the medication must provide information in addition to the instructions for use from the pharmaceutical manufacturer.
(BGH, judgment of March 15, 2005, Ref.: VI ZR 289/03)
Burden of proof for medical malpractice
A gross treatment error that is capable of causing damage of the type that actually occurred generally leads to a reversal of the objective burden of proof for the causal link between the treatment error and the damage to health. It is sufficient for the gross malpractice to be capable of causing the damage that has occurred; however, the error does not have to suggest or make the damage probable.
(BGH, judgment of April 27, 2004, Ref.: VI ZR 34/03)
Age limit for setting up as a panel doctor confirmed
The 1st Senate of the Federal Constitutional Court has determined that it is compatible with the fundamental right to freedom of profession (Art. 12 Para. 1 GG) and the general principle of equality (Art. 3 Para. 1 GG) to no longer admit doctors over the age of 55 to contract medical care.
(BVerfG, 1 BvR 491/96 of 20.3.2001)
Liability of the doctor in the event of failure to provide information and occurrence of one of several surgical risks
It is sufficient for liability for the full damage incurred by a patient during an operation if the patient was not informed by the doctor about one of the risks that have now materialized. The reason for this is that the patient, who was unable to fully assess the risk of the procedure, was also unable to make a reasonable overall assessment.
(BGH, judgment of 30.01.2001 Ref: VI ZR 353/99)