Medical Law Attorney in Cologne Bernd Brandl

Do you need a lawyer for medical law in Cologne?

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 the result of a treatment can be used to infer a treatment error. Rather, the decisive factor is whether the medical standard was adhered to during the treatment. The doctor assumes responsibility for ensuring that the medical standard is met 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? Broadly speaking, the information must be provided verbally, in good time and in a comprehensible manner. Further details can be found in Section 630e BGB. In case law, there are also numerous judgments in which the requirements are specified. In the case of planned operations, for example, the information must be provided by around 4 p.m. on the day before the operation at the latest. The patient must be able to weigh up the advantages and disadvantages of an operation in peace and quiet 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 expected risks. 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. There is a definition of this in Section 630e (1) of the German Civil Code (BGB), although this 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 Attorney Brandl (phone: +49 221 9433 80 20).

Decisions

Judgment of the AG Cologne on the fee agreement for root canal treatment, billability of numbers 2730 and 2442 GOÄ Judgment of the Regional Court of Cologne on the necessity of a reference to existing insurance cover in a medical fee agreement with a patient with statutory health insurance Judgment on the medical necessity of a DVT scan (defense against claim)

Covering the costs of Lasik surgery

The costs of a Lasik operation may be reimbursable if the private health insurance is based on the MB/KK 94 (Model Conditions 1994 Medical Expenses and Daily Hospital Indemnity Insurance). (LG Dortmund, judgment of October 05, 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 (Article 12 (1) of the Basic Law) and the general principle of equality (Article 3 (1) of the Basic Law) to no longer admit doctors over the age of 55 to provide contract medical care. (BVerfG, 1 BvR 491/96 of March 20, 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)