Medical malpractice: what can I do?

Just like everyone else, doctors or healthcare professionals such as nurses, midwives, naturopaths and psychotherapists can sometimes make mistakes. If there is malpractice in medical care, the consequences for patients can be particularly serious, with errors leading to life-long impairments or even death. 

If treatment doesn’t go to plan or doesn’t have the desired outcome, this unsettles the patient and they want to clarify whether there is malpractice or whether there are other reasons. This means it is important to know the legal options in the case of suspected medical malpractice.

Medical malpractice usually occurs when treatment is not up to the generally accepted medical standards. Treatment in line with generally accepted medical standards means that a doctor applies scientific findings, tried-and-tested practices and medical guidelines during diagnosis and treatment.

Medical malpractice can occur at any stage of medical treatment and care. As such, it is not limited to errors made during specific treatment and therapeutic measures such as surgery or the administration of medication. 

Examples of medical malpractice include:

Diagnostic errors

The right diagnosis is key for patients to be treated successfully. This means that doctors must consider all possible causes for symptoms and physical complaints before they diagnose an illness and start any treatment. The non-performance of diagnostic assessments and the incorrect evaluation of findings are also classed as errors in diagnosis.

Errors in treatment 

Once a diagnosis is made, doctors should recommend the treatment method that promises the greatest chances of recovery and the lowest risk. If the doctor deviates from the medical standards for no reason when choosing the treatment, this may be malpractice. Treatment errors include any error that is made when performing the specific measures, for example giving an incorrect dose of medication, incorrectly placed syringes or an incorrectly applied plaster of paris for a fracture. 

Organizational errors 

Medical practices, hospitals and other healthcare facilities must design their processes to ensure all examinations and treatments are organized properly and in line with quality standards. Examples of organizational errors include administrative errors, such as improper personnel planning or the failure to replace broken equipment. Excessively long waiting times that lead to health problems can also be regarded as organizational errors.

Violations of hygiene standards 

If hygiene standards are disregarded in medical practices, hospitals and other facilities, this can have serious consequences for patients. People with compromised health in particular are at great risk from germs. This means that violations of medical hygiene standards are often assessed as medical malpractice in the jurisdiction.

Errors in the follow-up to treatment 

Before they end the treatment, the doctor must tell patients what to consider to ensure that the treatment is successful. These include for example telling them about any necessary check-ups or taking certain medication. If the doctor does not give them appropriate information, this may also be medical malpractice.

Errors in information or advice given 

Errors in the information or advice given primarily involve the absence of or incorrect, incomprehensible or incomplete explanations about medical procedures and their risks. If this results in harm to patients, doctors can sometimes be held liable.

People who suspect medical malpractice often have a need to directly discuss what has happened with the responsible doctor. Doctors have to provide their patients with as much information as possible – if there are any health risks and, if the patient asks them, also about their own mistakes.

If the consultation does not eliminate the suspicion, it is advisable to request a copy of the patient record. This documents all information of consequence for the treatment and enables you to gain an overview of the course of treatment from a medical perspective. The record can be an important piece of evidence if you decide to take legal action.

It can also be useful to keep a private log. This should summarize the timeline of events relating to the medical situation from your perspective. In addition to appointments, locations and treatment steps, it can also detail the people involved and any witnesses. This is important for evidencing things that have happened at a later date.

Health insurance offers

Health insurance companies are important points of contact in cases of suspected medical malpractice. Statutory health insurance providers are obliged to offer their members free support in relation to medical malpractice providing the treatment was paid for by the relevant provider.

In the event of suspected medical malpractice, health insurance providers can obtain an expert report from the Medical Review Board (MD). They can also provide services that make it easier for insured parties to gather evidence or make important information for judicial proceedings accessible to them. With the appropriate consent, further documents can also be requested from the institutions and specialists providing treatment and an overall assessment of all available documents can subsequently be performed.

Complaints procedures in hospitals

In hospitals, patients can also contact complaint management. In some federal states, independent patient advocates for hospitals are required by law. These ombudspersons support those affected with their concerns.

Medical institutions

If medical malpractice is suspected, expert panels or arbitration boards can also be involved. These are usually based within the responsible State Chambers of Physicians or State Dental Associations. Anyone can turn to these institutions, regardless of whether they have health insurance. However, proceedings can only go ahead with the agreement of everyone involved. That means that the doctor must agree to the proceedings. The proceedings are free for patients. 

The contact details for arbitration boards and expert panels sorted by federal state can be found on the German Medical Association (Bundesärztekammer) website.

The addresses of the State Dental Associations can be found on the German Dental Association (Bundeszahnärztekammer) website.

For the arbitration boards to get involved, the case must not yet be the subject of judicial proceedings and must usually not date back more than five years – or in some cases ten years. If a patient chooses this route, the three-year limitation period for any compensation claim will be interrupted during the procedure.

To successfully claim for compensation in relation to suspected medical malpractice, patients must generally show and prove that:

• the doctor treating them made a mistake
• they have suffered damage to their health 
• the damage to their health was caused by the error

Patients are rarely able to do this without help. This is because not all problems that patients have can be attributable to the treatment. For example, they could also have been caused by an overall deterioration in health or new illnesses. A medical report is therefore required. 

How does my health insurance provider help me obtain a medical report?

If statutory health insurance providers have covered the cost of the treatment, they can obtain an expert report from the Medical Review Board (MD). The Medical Review Board assesses the actions that have been taken. It then creates a written report based on a questionnaire, the patient record and, where available, the patient’s own private log. The Medical Review Board will endeavor to complete the review within 3 months. Please note that this is an average time scale and complicated cases may take longer. The report is free of charge for people with statutory health insurance.

More information is available on the Medical Review Board’s website (in German only).

Medical malpractice can have serious consequences for those affected. Required follow-up treatments, pain or permanent physical impairment can mean damage to health. Financial losses are also possible, for example if those affected cannot work for a long time. In such cases there may be an entitlement to compensation of damages, compensation for pain and suffering or – in the event of death – subsistence payments for relatives.

If you have a medical report, you or a legal aid appointed by you can approach the doctor with this. The compensation of damages or for pain or suffering will then be negotiated with the doctor’s liability insurance provider.

If an out-of-court agreement is not possible, lawsuits can be brought before the civil courts. Representation from a medical lawyer who specializes in medical liability law may then be necessary. Such lawyers can be found through bar or lawyers’ associations. In addition to the lawyer’s fees, there is also the cost of the court process to factor in.

The limitation period for compensation claims is usually three years. It starts at the end of the year in which the person affected discovered the possible medical malpractice.

The Independent Patient Advice Service for Germany (Unabhängige Patientenberatung Deutschland – UPD) offers advice in the event of suspected medical malpractice. Citizens can obtain free advice on patient rights, doctor-patient disputes and treatment and therapy options, among other matters.

Would you like to know more about “medical malpractice”? More information (in German only) can be found in the “Guide to Patient Rights” (“Ratgeber für Patientenrechte”) published by the Federal Ministry of Health (Bundesministerium für Gesundheit).