The number of cases in which doctors are accused of negligence and brought to court has increased significantly in recent years. A fundamental distinction must be made between criminal and civil proceedings. The authors provide an overview of the relevant risks and the options for action by doctors and lawyers.
In criminal and civil proceedings, different demands are placed on the legal liability of the physician. On the one hand, this is procedural with regard to the distribution of the burden of proof, and on the other hand, it is substantive with regard to the standard to be applied to the reproachability of a medical act. While criminal proceedings are concerned with the possible sanction by the state, civil proceedings are concerned with the enforcement of third-party claims against the physician.
Both the fulfillment of the criminal offense of negligent homicide according to § 222 StGB and the civil claim for damages against the treating physician generally require that the physician has committed negligent medical malpractice or omission. Whether this misconduct can also be legally attributed to him can actually be answered differently in civil and criminal law.
I. The problem
1. Medical malpractice
When it comes to legal responsibility, a distinction is made between the violation of two main duties:
- errors in diagnosis and
- treatment errors.
A breach of a physician's duties may consist of either an act or an omission.
The question of whether a doctor has acted properly in a specific case of treatment cannot be answered solely on the basis of legal principles. Rather, the medical requirements in each individual case are crucial.
With regard to the countless medical individual cases, legal error and generic terms were defined – some examples:
2. Information error
Informational errors occur when the information provided is not accurate, complete or timely. In particular, information must be provided about the typical risks of a treatment, but also, for example, the urgency of an intervention and, if applicable, treatment alternatives if these involve significantly different risks.
In addition, an alternative explanation may be required when new procedures are used if a method is not yet "standard".
According to a civil judgment of the Federal Court of Justice (BGH), a patient cannot invoke an error in the information provided, even in the case of a relatively new surgical procedure, if (only) a risk materializes about which he has been informed.
3. Medical malpractice
A treatment error is generally understood to be a violation of the medical standard in the respective specialty. A medical procedure that is not performed according to the rules of medical art is considered a treatment error. In addition to the procedure, which falls short of the standard in terms of "technical" execution, there are further and different types of medical errors, the reproachfulness of which is subject to different requirements:
Diagnostic errors:
Due to the wide range of possible symptoms, the courts are hesitant to categorize diagnostic errors as medical malpractice. A diagnostic error only becomes a reprehensible medical malpractice if the diagnosis no longer appears justifiable.
Omission of findings:
If the physician fails to obtain findings that are required in a given situation, this may constitute a culpable violation of the physician's duty to obtain and document findings.
Control and monitoring errors:
These can be fulfilled, among other things, by insufficient postoperative monitoring.
Organisational errors:
For example, the head physician has "overall responsibility". He is responsible for ensuring that his entire team provides treatment that is appropriate, i.e. that it meets the standards of a specialist. He must not only monitor and control the medical documentation requirements, but also patient education. The same applies, among other things, to the proper functioning of the on-call service and the on-call service.
Neglected secondary obligations:
There are no less important accessory secondary obligations, such as the duty to provide information to the patient, the duty of confidentiality and, in particular, the duty of documentation.
Documentation errors are not per se classified as medical errors, but they can still have serious consequences. What needs to be documented is what is medically relevant for co-treaters or subsequent practitioners, in a sufficiently clear form for the specialist. If this is not done properly, this alone does not give rise to liability. However, if gaps or errors in the records cause (subsequent) medical errors, this does give rise to liability.
In addition, medical documentation is also of the utmost relevance for conducting a lawsuit, in the context of the burden of proof and the means of providing evidence.
II. Criminal relevance:
The basis of any negligence is the required level of care, the content of which is determined in criminal law according to an objective and subjective standard. In the criminal law sense, several criteria must therefore be met before one can speak of a criminal offense or a criminally relevant omission.
The most important points:
Specialist standard:
The "model of the level-headed and prudent member of the relevant traffic circle, specifically the specialist standard, is used. "Standard" is therefore the level of skill and knowledge that has been proven in medical practice and experience at the time of treatment, is based on scientific knowledge, and is required of an average specialist. The treating physician is generally granted freedom of method, i.e. freedom of therapy. However, there are limits. For example, the doctor is no longer free in his decision if there is another procedure whose successful effect is generally recognized. He must always opt for the most promising procedure. In criminal law, therefore, an objective standard is to be assumed, rather than an individual one.
The question of objectively required care is determined from an ex ante perspective, i.e. at the time of the intervention.
Causation of the breach of duty of care:
A breach of duty of care must have been the cause of the subsequent death. The mere breach does not in itself fulfill the elements of the offense. In medical criminal law, a two-stage causality test takes place here. First, it is analyzed whether the behavior was a condition for the occurrence of the result in a mechanical-scientific sense. Then it is examined whether the negligence involved in the behavior was causal for the occurrence of the respective tortious act in the criminal law sense. The BGH formulates here: "it is crucial how the events would have unfolded if the perpetrator had behaved legally impeccable." The analysis of the "second stage" usually requires a probability forecast. All forecasts below the "probability bordering on certainty" must lead to an acquittal according to the principle "in dubio pro reo".
III. Civil law relevance:
1. Types of liability
A physician's liability in civil proceedings can be both contractual and tortious. Contractual liability arises from the obligations under the law of obligations that two contracting parties enter into with each other, while tortious liability comes into play when the patient's protected legal interests are violated.
In both cases, the reason for a liability is the violation of the physician's duties by the treating physician – that is, the failure to exercise the medically required care. Contract law and tort law coexist and, to put it simply, the obligations of the treatment contract are congruent with the tortious duties of care.
Contractual liability:
With regard to medical treatment, it is generally a service contract according to §§ 611 ff. BGB. The doctor does not owe the patient a specific outcome, such as full recovery, but (only) the diligent performance of the treatment.
The contractual partner for privately insured patients is the patient themselves; for those with statutory health insurance, the contractual partner is the statutory health insurance fund, which, however, concludes the contract in favor of the patient in accordance with § 328 BGB.
If the doctor works in a hospital, it may be more difficult to determine who is the contractual partner of the patient, i.e. who is responsible for providing the proper medical treatment and who is liable for breaches of contract such as faulty treatment. In principle, both the hospital, through its legal entity, and the treating staff can be considered. However, as a rule, a so-called "total hospital contract" is concluded when the patient is admitted, i.e. the hospital becomes the sole contractual partner and owes the general hospital services (in the sense of § 2 BPflV), including medical treatment.
There is no contractual claim for the provision of services against the doctors in attendance, nor is there any liability claim in the event of incorrect treatment. They act as vicarious agents for the hospital in accordance with § 278 BGB. If a doctor violates his duty of care, his fault is attributed to the hospital. This is different in the case of a supplementary medical insurance contract for optional services, in the case of the so-called "split contracts", i.e. a contract with an elective doctor and with the attending physician - here the doctor is (also) the contractual partner.
Tortious liability:
Regardless of the existence of contractual claims against him or the hospital employing him, the treating physician himself can regularly be held liable in tort.
The hospital operator is also criminally liable for the fault of its staff. The employees are classified as vicarious agents in accordance with § 831 BGB. The medical director or the senior physician act as organs and are attributed to the hospital operator in accordance with §§ 31,89 BGB. The patient then has claims against both the hospital and the treating physician (in accordance with §823 et seq. and 840 BGB).
If the physician has violated his duty of care, personal liability in tort exists independently of any employment relationship.
2. Standard of care
In contrast to criminal law, civil law applies an objective standard, i.e. the standard of care to be observed is set independently of the individual abilities of the physician. The objective professional standard is applied.
3. Burden of proof in civil proceedings
The principle is: the patient or their heirs must prove that the doctor made a mistake that was the cause of the damage to their health.
However, the following easing of the burden of proof has been developed in favor of the patient:
- If the patient can prove that the doctor has committed a gross error of treatment that is fundamentally also suitable for causing the alleged damage, the doctor must prove that it did not lead to the damage to health. A treatment error is deemed "gross"" if the physician has clearly violated established medical treatment rules or proven medical knowledge and the error appears incomprehensible from an objective point of view and should not be made by the physician.
- In the context of the evidence, medical documentation is of crucial importance. The attending physician cannot be heard as a witness as the defendant. The testimony of his staff or medical colleagues is usually only given limited probative value. Furthermore, the disputed facts often occurred a long time ago, so that the memories of those involved on the treatment side are likely to be clouded.
- If complete and coherent documentation has been prepared promptly after the treatment and there is no evidence that it has been changed retrospectively, for example, the documented treatment measures are usually considered proven.
- However, in the case of documentation omissions, the patient's side of the burden of proof is regularly reduced. In such cases, case law assumes that an undocumented measure has not been taken. The physician must prove that he has nevertheless carried it out.
- The lack of documentation may be used to conclude that the physician was negligent. In isolated cases of very serious documentation deficiencies, the burden of proof has been completely reversed in favor of the patient.
- As mentioned above, the question of a physician's liability is measured against medical criteria, which is why the court obtains a medical expert opinion in almost all medical liability cases. The expert is provided with all available treatment records and the court asks him specific questions that he is supposed to answer on the basis of these records. Here, too, documentation retrospectively plays a crucial role.
IV. Practical tips:
1. Civil law:
- Inform liability insurers and employers immediately and in writing.
- Allow the patient and, if applicable, his heirs to inspect the medical records and provide them with copies in return for reimbursement of the costs. The treatment records are generally available to him in full if he asserts claims against doctors and hospitals.
- The medical records may only be handed over after the doctor has been released from their duty of confidentiality. The release must be documented in writing.
- Consider suggesting a conciliation procedure.
- Immediate involvement of a lawyer, ideally a specialist in medical law.
2. Criminal law
- As the accused or potential accused, always make use of the right to refuse to give evidence (Section 55 of the German Code of Criminal Procedure). A doctor is entitled to this right if he could incriminate himself, and not only if he would incriminate himself if he gave a correct account. A presentation of the case only takes place after the defense has inspected the files.
- The search warrant must not be older than 6 months. The documents to be seized must be described in sufficient detail. A "drag net" in terms of search technique is not permitted.
- If a detailed record of the seized evidence is to be prepared after the search (incorrect: "5 Leitz folders of documents"), do not give your consent to the seizure of documents. Copy the patient file before handing it over – after consulting with the searching officers.
- Consultation of defense counsel in a timely manner. The defense counsel should arrive during the search and monitor the procedure. The prohibition of "multiple defense" applies, i.e. each accused requires "his" or "her" lawyer.
- As a matter of principle, no contact is to be made with relatives of a deceased person. Potential witnesses (doctors, care workers, nurses) are to be encouraged to write down the individual events for themselves in the form of a memory protocol.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.