Medical negligence law allows patients to hold their doctors to high professional standards. It is not designed with the intent that every treatment needs to be successful but with the aim that medical professionals carry out treatment in accordance with high professional standards. If treatment errors can be shown to have arisen because of malpractice then the patient may be entitled to compensation.
Proving that medical negligence has arisen can be a challenge and for this reason having an experienced legal professional in your corner is vital. In this article we will outline the grounds for medical negligence law in Germany. We will examine the requirements necessary for a medical negligence case and outline what factors will determine whether a person has a strong case for it. If you require specialised legal then please make sure to contact our lawyers directly using out contact form below this article.
What is Medical Malpractice?
The standard expected of medical professionals is outlined under § 630a German Civil Code (BGB) and it states the following:
- 1) The treatment contract obliges the party agreeing to provide medical treatment for a patient (treating party) to provide the promised treatment, and the other party (patient) to pay the agreed remuneration unless a third party is obliged to effect payment.
- 2) Unless agreed otherwise, the treatment must take place according to the medical standards that are generally recognised at the time of the treatment.
Therefore, it is clear that not all unsuccessful medical interventions can be classified as medical negligence. It is in cases where the medical standards are not reached that medical negligence can be applied. In other words, cases involving the following issues will generally not be seen as medical negligence cases:
- the treatment is carried out professionally and to the correct standards but is ultimately unsuccessful,
- typical medical complications arising following treatment of the required standard,
- the patient does not follow the medical instructions provided concerning issues such as bed rest, the use of medication etc. – and thus damages their own health.
Malpractice can arise through a number of actions (and omissions) carried out by the medical professional. We will outline the different forms of malpractice later in this article but breaking these types down we can state that malpractice arises where the medical professional does not act in accordance with medical standards. This can arise through:
- omission by not taking appropriate action at the right time,
- by failing to take into account vital information,
- through taking steps that were not medically necessary
- in cases where the medical professional has performed an action but not according to medical standards.
Types of Malpractice and Medical Negligence under German Law
There is a long list of actions and omissions which make up the different forms of medical negligence and malpractice which can occur. Here is a breakdown of the different forms of malpractice:
- Misdiagnosis: it can arise that the medical professionals do not take into account all the symptoms. Correctly identifying symptoms ensures that patients are treated appropriately. A misdiagnosis may result in the patient being treated incorrectly and leaves open the possibility of further damage or injury arising.
- Delay in Diagnosis: in these cases it can be demonstrated that another medical professional could have been reasonably expected to make the diagnosis sooner and that the delay in diagnosis lead to complications arising for the patient. Such cases may also be linked to a previous misdiagnosis which caused the delay in diagnosis.
- Surgical Errors: surgical errors can lead to serious consequences. Issues such as non-sterile operating instruments, performing the incorrect surgery, performing unnecessary surgery, poor practice leading to damaged internal organs, errors with anaesthesia and more can be constituted as surgical error. Such an error can cause major damage and injury to an individual and thus need to be avoided!
- Anaesthesia Errors: this has been mentioned under surgical errors but in detail anaesthesia errors refer to cases involving the incorrect amount of anaesthesia being used, the administering of a substance which the patient is allergic to (where they should have been aware of such an allergy) and in cases where there has been negligence in its administration.
- Documentary Negligence: the medical professionals may have been provided with incorrect information due to documentary negligence on the part of others within the hospital. If the documentation concerning the patient is not correct then those operating on the individual may not have all the vital information needed when taking actions.
- Nursing Errors: if the nursing staff makes errors in treatment.
- Organisational Errors: organisational errors can take many forms. These can involve insufficient hygiene measures being taken in the facility, inadequate machinery used and too few personnel on-hand among others.
- Negligent Aftercare: such errors can arise in the recovery stage. If following a surgery, the patient is not provided with adequate aftercare which leads to the recovery process being damaged, insufficient or not controlled then the patient will have a claim to medical negligence.
This is not a comprehensive list of the different forms which medical negligence. However, it should demonstrate that this is a broad category and involves a number of aspects related to medical care.
How does a Case for Medical Negligence arise?
Patients have to demonstrate that the malpractice occurred and that it has led to negative impacts on their health. As well as these factors, there is also a time limit applicable to such cases. The limit is three years in which to make the claim. The patient must bring the case and show that the medical professional did not perform to the expected professional standard. Having a legal professional in your corner will allow for closer examination of how the medical professional acted as well as examine the documents relating to the case.
Our lawyers will investigate the necessary documents to ensure that all relevant files were in order and that vital information was taken into account, they will explore the backgrounds of those who were involved with the treatment to ensure that they were suitably qualified to perform and they will examine the case to ensure that you as the patient granted consent to the different treatments used as appropriate. Our legal team will ensure that all aspects of the matter are scrutinized to a professional standard.
Medical negligence cases can be long and drawn-out affairs. These cases can involve long hours of investigative work and are a major commitment. Our lawyers will not paint a picture of ease or pretend that cases will be short and sweet. However, our job is to ensure that our clients receive justice and should we act in your corner we are bringing legal knowledge and experience to the table.
Once the case has been outlined to us, we will be able to work with you in creating the litigation strategy upon which we will proceed. If you are unfamiliar with how the legal system works in Germany, then we will ensure that you are informed of its intricacies. We will work in combination with you to achieve the best outcome possible from the case.
Should you suspect medical negligence took place, it is advisable to inquire about the practices used by accessing other medical professionals. In such cases our lawyers will consult with medical professionals to find out the exact requirements for the standards expected of them in such situations. Should the case end up in the courtroom then we will ensure that when going in there that the case has been fully prepared and that we are on the same page when it comes to the litigation strategy.
Is a Lawyer Necessary in Medical Negligence Cases?
Cases of medical negligence can concern large amounts of money depending on the circumstances. In such cases where the amount of money to be paid in compensation numbers into relatively high figures, it becomes necessary to have a legal professional in your corner. These cases can also involve a number of different parties as it may not just be restricted to the individual doctor or nurse but may include the hospital / medical facility and their insurance provider. When the insurance providers become involved in such a case, it can lead to the matter being dragged out for a lengthy period of time.
Therefore, to answer this question where the case involves small figures of compensation it may not be strictly necessary to employ a medical negligence lawyer but it is advisable. In cases involving significant amounts of potential compensation it is absolutely necessary. Even in the smaller cases, it is strongly advisable to have professional legal assistance to significantly increase your chances of success.
Compensation for Medical Negligence
Should a case for medical negligence be proved and held up in court the amounts of compensation which may apply are significant. There is of course a range in the amount of compensation based on the seriousness of the matter and cases will primarily be decided on the facts of the matter. However, this is a list of compensation figures which have been provided in previous medical negligence cases:
- Medication provided leading to allergic reaction (despite known allergy): €250,
- Surgical thread not removed: €5000,
- Major anaesthetic error: €20,000,
- Delay in specialist treatment leading to blindness: €90,000,
- Cerebral haemorrhage due to misdiagnosed aneurysm: €245,000
As can be seen here the amounts of compensation discussed here are significant. The issues involved in such cases are also very serious and medical negligence cases must be seen as actions which can cause serious issues for a person throughout their lives. Medical missteps can create damage and injury which affect a person for the rest of their life.
A medical mishap can reduce a person’s earning potential or lead to them needing further medical assistance throughout their life. This is another reason why having a legal professional in your corner is strongly advised. Our legal team will work with you in determining the amount of compensation which should be sought based on the facts of the matter. The amount of compensation should serve as compensation for the individual but must also be appropriate to the level of seriousness of the issue.
At Schlun & Elseven Attorneys, our lawyers will be by your side during your medical negligence case. From our offices in Cologne, Aachen and Düsseldorf we have worked with clients from all over the world during their interactions with German law. We have further facilities in Berlin, Hamburg, Frankfurt, Stuttgart and Munich as well as offer our services from distance through telephone, email and video conferencing. Our attorneys can provide you with the information you need when it comes to German medical negligence law in English as well as German to ensure that we do not get lost in translation. If you have any further questions about medical negligence claims make sure to contact us. We are looking forward to working with you.