Anyone who seeks medical treatment trusts that it will be performed professionally and in accordance with applicable medical standards. Nevertheless, it happens time and again that patients suffer from significant symptoms, unexpected complications, or permanent health impairments following surgery or another medical procedure. In such cases, the question often arises as to whether medical malpractice has occurred and what legal options are available to those affected.
Medical malpractice generally occurs when medical treatment deviates from the generally accepted professional standards in effect at the time of treatment without a corresponding medical justification. These standards determine which examinations, treatment steps, and follow-up measures are necessary in a specific situation. They are derived, in particular, from the recognized findings of medical science and the professional requirements of the respective medical discipline. The legal obligation to comply with these standards is enshrined in Section 630a(2) of the German Civil Code (BGB).
However, it must be taken into account that not every medical treatment is guaranteed to be successful. Even with treatment that is entirely in accordance with professional standards, complications, unwanted side effects, or permanent health damage may occur. Such consequences may reflect a general risk inherent in the treatment, without the treating physician being accused of a legally relevant error. Therefore, the decisive factor is not solely the outcome of the treatment, but rather, in particular, whether the treatment met the relevant medical standards.
Conversely, medical malpractice may exist if a physician deviates from recognized standards without sufficient medical justification. In such cases, the specific circumstances of the individual case must always be taken into account. For example, in an emergency operation, special medical measures may be necessary that deviate from the usual course of treatment. Individual anatomical characteristics or specific treatment approaches may also justify a deviation. However, the decisive factor remains whether the specific medical procedure was medically justifiable.
It is often difficult for patients to determine on their own whether medical malpractice has actually occurred. Possible signs may include, in particular, unusually severe or persistent pain following surgery, unexpected limitations in movement, nerve damage, or other long-term health impairments. Even symptoms that do not appear until some time after treatment may warrant a closer examination of the original course of treatment. However, such symptoms are initially merely indications and do not constitute definitive proof of medical malpractice.
It is therefore particularly important to distinguish between a medical complication and actual medical malpractice. Not every unexpected health development is attributable to medical negligence. Conversely, however, unusual symptoms should not be hastily dismissed as an unavoidable consequence of treatment. If there are reasonable doubts regarding the proper performance of a medical procedure, a thorough medical and legal review is recommended.
The patient’s medical records play a central role in this process. Under Section 630g of the German Civil Code (BGB), patients generally have the right to immediately access their complete medical records. In addition, they may request copies of the documents, including in electronic form. The first copy must be provided free of charge. Restrictions on the right of access are permitted only under the conditions prescribed by law, particularly if there are significant therapeutic reasons or substantial rights of third parties that preclude such access. Any refusal must be substantiated.
The medical record is of considerable importance for the legal assessment of a possible medical malpractice. It typically contains essential information regarding the course of the illness to date, diagnoses made, examinations performed, medical decisions, and treatment measures taken. In particular, surgical reports, medical documentation, examination results, and information on follow-up care can provide important indications as to whether medical standards were adhered to. Often, it is only by reviewing these documents that one can determine which procedures were actually performed and whether any errors occurred in the process.
In addition to the original treatment documentation, the findings of a physician consulted at a later stage may also be of particular importance. If, for example, a subsequent examination reveals that a previous treatment may have been performed incorrectly, the corresponding medical findings can make an important contribution to clarifying the situation. For a well-founded assessment, it is therefore advisable to consider both the original patient record and subsequent examination reports and medical opinions.
In legal practice, however, it is frequently found that obtaining the complete treatment records can be difficult. Particularly in larger hospitals, where numerous physicians and various specialized departments were involved in a patient’s care, compiling the documentation can entail significant organizational effort. In some cases, however, even smaller medical practices experience considerable delays in releasing the records. This is particularly problematic for affected patients because a legal review is often virtually impossible without the necessary medical information.
The right to access the patient’s medical records generally exists regardless of whether medical malpractice has already been proven. Patients therefore do not first have to demonstrate that the treating physician committed a mistake. Nor may the fulfillment of the statutory right of access be made contingent on the payment of outstanding treatment bills. If the documents are not provided despite a request to do so, legal counsel may be advisable to enforce the existing right.
To successfully assert claims arising from medical malpractice, it is generally not sufficient merely to establish a deviation from the standard of medical care. Rather, it must also be determined whether this deviation caused harm to the patient’s health and whether there is a causal link between the error and the harm that occurred. Under certain legal conditions, the burden of proof may be eased in favor of the patient. This applies, for example, to cases of gross medical malpractice or certain deficiencies in documentation. The relevant provisions are set forth in particular in Section 630h of the German Civil Code (BGB).
Patients who notice unusual symptoms following medical treatment or suspect medical malpractice should therefore seek a medical evaluation as early as possible. At the same time, it is advisable to request the existing medical records, document the symptoms and their progression, and, if necessary, seek a second medical opinion. On this basis, it can then be assessed whether there is sufficient evidence of medical malpractice and what legal steps may be considered.
If medical malpractice is suspected, early consultation with a Lawyer specializing in medical law can help obtain the necessary documents, analyze the medical facts, and evaluate potential claims. Depending on the circumstances of the individual case, claims for damages and compensation for pain and suffering may be particularly relevant. A careful assessment of the specific course of treatment and the resulting health consequences is always crucial.
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.