Medical malpractice

This product was added due to formal or content, deficiencies in the quality assurance law to improve. This is done to bring the quality of articles from the topic entitled to an acceptable level. Help us to eliminate the substantive shortcomings of this article and take part you in the discussion! ( ) Justification: Formal and materially inaccurate introductory text

A medical malpractice occurs when a medical treatment was not carried out in compliance with the time of treatment the current knowledge state of medical science, unless the patient and the treatment provider have agreed and valid a different standard of care. Treatment failure can result from any act or omission of a. You can have the consequence that the therapists to civil, criminal or administrative must adhere.

Malpractice

Handling Errors are synonymous colloquially often referred to as malpractice, because the medical treatment not according to the rules of the ( medical ) Art (Latin lege artis, Eng. State of the art ) is done. The original explanation goes back to Rudolf Virchow, who defined the concept of malpractice than the damage to the health of a patient from want of proper attention or care and contrary to generally accepted rules of medical science.

Definition of the error

Unwanted difference between observed, measured or calculated states or processes on the one hand and the true, specified or theoretically correct states or processes on the other. The Institute of Medicine (IOM ) defines error as " the failure of a plan or use of a wrong plan to achieve an aim ." One distinguishes errors after their cause or after the event of their occurrence, but even after the error behavior ( see DIN 44 300 ).

Types of errors

The error can be purely medical nature, but also relate to organizational measures and faulty behavior of subordinate or legwork forming people. A medical treatment error can also missing or incorrect and unintelligible, or incomplete security reconnaissance represent (therapeutic education ) of the patients about their own behavior in therapy.

What would have been the right treatment, can be clarified by medical reports. Here, the orientation of medical guidelines, which are prepared on the basis of evidence-based medicine to be helpful. However, such guidelines are not to be equated with the scientific standard in every case. The medical assessment shall consider both the freedom of treatment, and opinion differs as to the respective treatment time point.

The practitioner owes the patient a fault-free treatment under service agreements, but not necessarily the cure. A medical malpractice can have for the practitioner to civil and criminal penalties.

Not every Therapeutic failure is a medical malpractice - Complaints may also be known side effects or complications. It is often difficult to distinguish between the effects of the disease itself and the consequences of mishandling.

Causes

The causes of treatment failure are complex and numerous. In addition to general human shortcomings increasing public awareness of the external conditions in the spotlight, which increase the risk of medical errors. When factors are given as:

Efforts to increase patient safety was reinforced by the changes made by the patients' rights law continued.

Limits the freedom of treatment

A practitioner is to free choice of therapy. If there are several treatment options, the patient must be informed of the involvement of the respective risks. Again, there is the consent requirement of the patient for the selected therapy. The therapeutic freedom is restricted. If there are several risk equal opportunities is the treatment with the greatest chance of success and several equivalent ways he has that select with the lowest risk, otherwise the treatment may be classified as defective. In the statutory health insurance, the efficiency principle in accordance with § 12 SGB V is also considered, given statutory insurance are only entitled to sufficient, appropriate, economic and what is necessary not border services.

Alternative treatments may only be applied if doing no harm that would have been avoided by use of scientifically recognized methods of healing. The Federal Constitutional Court ruled in 2005 that public health insurance must pay in seriously ill patients, alternative healing methods which offers a reasonable hope of cure or significantly improve the disease course is - if the medicine does not see any more treatment option. In the process of the constitutional judges found the 1997 verdict, the Federal Social Court "with the principle guaranteed general freedom of action, to the social principle and the fundamental right to life as incompatible ."

Informing the patient

In case of treatment failure, the patient must be informed by the attending about it on demand or to avoid health hazards. In Germany this information requirement is now regulated in § 630c paragraph 2, sentence 2 German Civil Code. The Coalition for Patient Safety has published a brochure on this, the doctors and nurses, the fears and insecurities when it comes to help overcome information. It reads:

" In the case of adverse events and medical errors, good communication and a professional approach to the affected parties and participants are ethically. This is a core component of an advanced safety culture. Patients and relatives and staff involved in the right to expect an honest, fair, directed at mitigation and future loss prevention actions of those responsible. "

Frequency

In the German Medical Association ( GMA ) the symptoms of the various advisory committees and arbitration boards are for medical liability issues summarized ( for 2006, the first nationwide uniform ) annually. Thus in 2006 were only slightly more complaints investigated than in 2005, namely 10,280, of which have shown treatment failure in 3897 cases. With 500 million outpatient visits a year, this is a rate of 0.0008 %. Estimates of the number of unknown cases in this regard were not there announced. It is for this detection method, a problem of the doctor -patient relationship that many patients may not know by the unequal distribution of knowledge or notice until years later or suspecting that they (perhaps) were treated wrong. A study on it then usually does not occur. Also, there are no figures on cases in which physicians and patients agreed on a settlement of claims without arbitration body.

In 1562 are covered by the German Medical Association medical malpractice Enlightenment defects were added in another 422 cases, the lack of risk disclosure without harm to the patient was noted. Most of the allegations relating to operations (about 25%), below 10 % postoperative therapies or diagnostics. This can be a survey error in the sense be that either frequent contact patients in these subject areas to several doctors and it leads to an increased detection of defects or the evidence can succeed more easily than in other disciplines.

2011 11.107 conciliation proceedings were sought from the state medical boards.

Since the publication of the report, " To Err is Human " by the Institute of Medicine of the U.S. National Academy of Sciences in 1999, the topic of medical risks, errors and patient safety has gained increasing attention in the international literature.

The Medical Services of the Health Insurance (MDK ) conducted in 2012 12,483 malpractice assessments. They found in 31.5 % of cases ( 2011, there were 32.1% of 12,686 cases ) a medical malpractice firm. In 21.7% of cases, the causality also damage could be detected. The MDK is turned on when an insured applies to the suspicion of a treatment error to the insurance company. The observed proportion of incorrect treatments refers to the suspicions to the MDK submitted. The assessment of whether in a given case there is an error in treatment is done on the basis of patient or medical records, and possibly due to an additional personal memory protocol of the patient.

Selection of nationwide identified by the MDK 2011 and 2012 the ten most frequent treatment failure:

The German Dental Association criticizes that the number of medical malpractice is not put in relation to the number of actual treatment cases. Without reference to the total number of treatment cases published by the MDK absolute numbers of medical errors were not significant and did not allow conclusions as to the relative frequency of medical errors, and thus the quality of care overall. Criticism is, moreover, that can not be closed in any case protected to a treatment error, the labeling of a loss event as a treatment failure rather also is subject to the discretion of the assessor, as the review by the MDK, only occur on the basis of medical records and memory protocols of the patient.

Clarify options

Independent proof method

An Independent proof procedure can be performed when the evidence is compromised by loss of evidence ( § 485 para 3 ZPO). This can be in the event of treatment failure may be necessary to secure the findings before by other necessary treatment measures the state could be changed ( therefore earlier name litigation ). In the proof method of proof can be given by a court-appointed appraiser. Private opinion, however, are not admissible as evidence in court, but only as a qualified party lecture.

Arbitration boards

When an error is suspected treatment can help a medical private opinions. Another way to be clarified whether the medical treatment was carried out professionally, provide mediation services. However, the process is only initiated when the accused doctor or the accused institution consents to arbitration. For the investigation of complaints and liability issues, the medical profession has set up in Germany advisory committees and arbitration boards at the state medical boards and the provincial dental associations. The cost of a pulled out of the arbitration body verifier and the methods package currently in force carried by the insurer of the doctor or the hospital authorities. The applying patient only has to bear his costs, including his legal representative and his eventual travel expenses. It is at the discretion of the physician claimed to agree to the requested by the patient arbitration.

Social Law

The health insurance to the insured in the pursuit of compensation claims support ( § 66 SGB V), for example by the medical records are requested from the doctor and be submitted to an expert of the medical service of health (MDK ) for examination. If you suspect a medical malpractice confirm here on a written report shall be prepared which will be provided to the insured free of charge. In the dental field defect reports can be created by the peer review process in the contract dental care.

Civil law

The treatment of errors is under German civil law a violation of the obligations arising from the treatment contract ( § 630a ff BGB). The practitioner must be in accordance with § 280 BGB provide compensation where he is responsible for the breach of duty and the breach of duty is the cause of the damage. The impairment of intangible legal interests (assault ) coming to § 253 para 2 BGB also a claim for pain and suffering into consideration. The treatment of errors is also a tort ( delict pursuant to § 823 para 1, 2 BGB), which can also lead to claims for compensation of the patient. Besides coming with clinicians claims against the hospital into account, may have traded for the physician as so-called assistant.

The practitioner is obliged under § 630f BGB to record all significant actions and their results, in particular the medical history, diagnoses, investigations, examination results, assessments, therapies and their effects, interventions and their effects, consents and explanations. This documentation may facilitate the subsequent investigation of a suspected error in treatment.

Damages

The material damages often involves the loss of earnings of the patient or the financial management of damage. Also travel expenses of close relatives to hospital visits can be made. Often incur the patient later on, additional cost for drugs, dressings or physiotherapy.

The claim for compensation of injured patients to the necessary medical expenses, unless the patient has worn itself. As far as the insurance company incurred the costs, this can make the claim passed to them in the way of recourse claims.

Damages

In addition, the doctor may pain owe money. Reference values ​​can give the Celler -pecuniary table of the Higher Regional Court of Celle. According to the jurisprudence of the Federal Court may for adequate pain and suffering ( § 253 BGB) in principle all be considered eligible merits of a case, including the degree of culpability of the tortfeasor, the duration of pain, limitations of life and the economic status of the tortfeasor and of the victim, etc.. In an international comparison, however, the amounts of the judged pain and suffering is low. The smart money has both countervailing and satisfaction function, it is transferable and inheritable. The claim for payment of compensation payments is one of the few cases in which an indeterminate application is permitted. The amount of pain and suffering can be left to the discretion of the court. A compilation can be found in Beck's pain and suffering table.

Burden of proof

The objective burden of proof for a treatment error lies with the claimant, ie the patient or his heirs. Also, the plaintiff must prove that the medical malpractice has caused damage. The today in civil law common expression Malpractice emphasizes this question of causality: Not every error of the physician establishes a liability for damages; rather must be due to this error, a concrete harm. The causality problem is a focus of many compensation cases in the area of ​​medical liability.

Burden of proof

However, to a burden of proof the plaintiff can get if it is possible to demonstrate to him that the damage alleged by him, a rough handling error basis is.

Rough Treatment Failure

A rough handling error is accepted by the Court if:

" [ ... ] The doctor clearly violate established medical treatment rules or secure medical findings and has made ​​a mistake, which no longer seems understandable from an objective point of view, because it may simply not committed by a doctor "

The finding of a gross error in treatment is a question of law, that is, they will be by the court rather taken by the medical expert. The opinion of an expert can only provide the reasons for this, according to Supreme Court.

In the presence of rough handling error, the causality of the coarse error for the harm is rebuttable suspected.

A burden of proof may arise even if evidence was not stored correctly. Similarly, incomplete or falsified documentation, including nachgetragener changes or supposedly lost documents, as well as an unsecured or unregistered access to editing capabilities to databases of case files lead to the burden of proof. Be evaluated also burned and not reconstructed, but discarded documentation. For example, the Higher Regional Court of Hamm has scored in its judgment of 12 December 2001 gross violations of Essen Clinic pathologists against the findings security obligation as rough handling errors and the burden of proof, therefore, reversed.

Lacks the purposes of medical education assurance (therapeutic education ) may represent a rough medical malpractice. Then it would also be assumed by an objective the burden of proof.

" [ ... ] A breach of the duty of the attending physician for therapeutic education (safety awareness ), which can be seen as rough handling errors on a regular basis leads to a reversal of the objective burden of proving the causal link between the treatment failure and the damage to health if it is appropriate, to cause the damage that has occurred; a chance for a result of a check is not required in such a case [ ... ] A reversal of the burden of proof is already to be assumed when the rough treatment failure is likely to cause damage to occur; suggest or probably make the mistake must not, however, the damage "

Other typical conditions for a judicial order of the burden of proof are:

• Failure to diagnostic assessment
• Obviously wrong treatment, ie rough handling errors and also medication errors
• Germ transmission by infection into a manageable range
• Use of faulty equipment, improper or undocumented equipment settings or omitted equipment maintenance (elapsed Prüfzeichenfristen ).

A physician is liable but not necessarily for a rough medical malpractice if the patient is a much-needed subsequent treatment by another physician denied (OLG Koblenz ). The patient is therefore obliged to cooperate, if he so the damage - can reduce ( loss mitigation ) - even with a coarse treatment failure.

Burden of proof

The physician is subject to a duty of documentation regarding his collected findings, the diagnosis and the action taken or caused treatments. A failure to documentation itself forms no independent basis for a claim in a malpractice process. The court may exclude the non- documentation of a record requiring action that the measure was omitted, which can lead to the burden of proof for the patient.

Similar facilities are granted jurisdiction over the proof of fault; in the context of contractual liability, the obligation to represent is already suspected by law.

Limitation

The claim for damages can not be imposed by the statute of limitations. The claims for damages for malpractice are subject to regular three -year limitation period. The three -year limitation period begins at the end of the year in which the claim arose and the creditor obtained from justifying the claim circumstances and the person of the debtor's knowledge or would have without gross negligence, § 195 in conjunction with § 199 paragraph 1 BGB. In the area of ​​medical malpractice regularly are familiar with treatment failure or treatment complication conveys not just the knowledge of the treatment error. The patient must rather those treatment facts have become known positively that - a medical malpractice and - - in view of the loss causation - a causal link between the damage sequence with the treatment failure suggest objective point of view in regard to the treatment failure.

Criminal

As the Court itself each error-free medical treatment is a constituent elements of offenses bodily injury ( § 223 StGB), but is not illegal as long as it is carried out effectively with the patient's consent. Undisputed that's for defective treatments. Because in it the patient has not consented to the act is also illegal. In Criminal Procedure, the patient is optionally co-plaintiff or witness. If the patient dies from the consequences of medical malpractice, negligent homicide or manslaughter exceptionally even come into consideration. Does the treatment provider factual terms, unlawfully and culpably traded and can be proved, he may be convicted of the crime.

Professional ethics

Furthermore, errors in treatment can have civil legal consequences. In the medical associations, dental associations or the competent professional courts on the basis of relevant professional codes or the cash decide ( dental ) medical associations in their disciplinary orders.

Berufsrecht

In particularly severe cases, the Admissions Committee in accordance with § § 26, 27 Regulation approving the Treaty ( dental ) physicians the partial or full suspension of admission as Treaty ( dental ) medical or withdrawal of the authorization order. As a last resort, the competent Provincial Government may withdraw the approval feature, which is equivalent to a prohibition.