If treatment does not have the desired outcome or there are complications, it is not just the relationship of trust with the person giving the treatment that suffers. Patients then often want to clarify whether or not there has been any medical malpractice.
At a glance
- If medical malpractice is thought to have been committed, the relationship of trust between patient and physician can suffer.
- Medical malpractice can occur in a number of areas, for example when the doctor is explaining the treatment to the patient, when making a diagnosis, in the treatment given, in how it is organized, in the aftercare to treatment, or regarding compliance with hygiene regulations.
- Statutory health insurance companies must support patients in suspected cases free of charge.
- Medical malpractice is often difficult to prove.
What is medical malpractice?
Doctors or healthcare professionals such as nurses, midwives, naturopaths and psychotherapists can make mistakes, just like everyone else. If there is malpractice in medical care, the consequences for patients can be particularly serious. These errors can lead to life-long impairment or even death. Medical malpractice usually occurs when treatment is not up to the generally accepted medical standards.
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.
What are the types of medical malpractice?
Medical malpractice does not just include mistakes that are made for example during surgery or when administering medication – i.e. while performing specific treatment and therapy measures. Medical malpractice can happen in all areas of medical activity.
Medical malpractice can occur for instance in the following areas:
Errors in information or advice given
Errors in the information or advice given are mainly found in the absence of or incorrect, incomprehensible or incomplete explanations about medical procedures and their risks. Doctors who violate their duty to provide information can be held liable for this under certain conditions.
Errors in diagnosis
The right diagnosis is essential 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. If necessary diagnostic assessments are omitted or findings evaluated incorrectly, they are also errors in diagnosis.
Errors in treatment
Once a diagnosis is made, doctors are required to always 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.
Medical practices, hospitals and other healthcare facilities must design their processes to ensure all examinations and treatments are organized properly and according to the recognized medical standard. They must also meet prescribed standards and guidelines. Organizational errors include for example errors that are made in administration, or excessively long waiting times that lead to health problems.
Errors in the follow-up to treatment
Before they end the treatment, the doctor must tell patients what to watch out for 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.
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.
Why can medical malpractice often be difficult to establish?
In many cases it is difficult to assess whether or not there has been medical malpractice because for one thing doctors cannot guarantee that their treatment is going to be successful. Even if treated correctly, the patient may not get the desired outcome. For another thing, problems that patients have are not always obviously due to the treatment. They could also have been caused by an overall deterioration in health, new illnesses or well-known risks. It is also often difficult for patients to take action if they think there has been medical malpractice, because they basically have to demonstrate and prove that:
- the doctor treating them has made a mistake.
- they have suffered damage to their health.
- the damage to their health was caused by the error.
What action can be taken and what kind of support is there when it is thought that medical malpractice has been committed?
Anyone who thinks medical malpractice has been committed can take a number of actions and get different kinds of support. Those affected often want to have their issue resolved in a direct conversation with the doctor responsible. So if there is suspicion of medical malpractice, it is first of all a good idea to have an open and honest conversation with the doctor who has given the treatment. 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.
Options in hospitals
In hospitals, patients can also contact complaint management. In some federal states, independent patient advocates for hospitals are required by law. These ombudswomen or men support those affected with their concerns.
Health insurance offers
Health insurance companies are another important point of contact in cases of suspected medical malpractice. The statutory health insurance companies are obliged to support the people they insure free of charge in the pursuit of claims for compensation arising from malpractice while claiming insurance benefits. They can review the documents the insured person submits to check they are complete and reasonable, with the insured person’s consent request additional documents from the service providers, obtain expert evidence from the Medical Review Board (MRB) and then perform an overall evaluation of all existing documents.
The Chambers of Physicians (Ärztekammern) and Dentists (Zahnärztekammern) have set up expert panels and arbitration boards to settle doctor/dentist and patient disputes out of court. Bringing in the expert panels and arbitration boards is voluntary and their activities are free of charge for patients. They take up cases that are not yet the subject of judicial proceedings and which usually do not date back more than five years. Many State Chambers of Physicians have set up overarching arbitration boards, for example the Arbitration board for medical liability issues of the North German Chambers, which is responsible for as much as ten local medical chambers. If a patient chooses this route, the limitation period for any compensation claim during the procedure will be interrupted.
Independent patient advisory
Germany’s independent patient advisory (Unabhängige Patientenberatung Deutschland – UPD) also offers advice in the event of suspected medical malpractice. Here every citizen can get free advice about patient rights, doctor-patient disputes, treatment and therapy options – on the telephone, online by going to www.patientenberatung.de, or by visiting one of 30 advice centers nationwide.
Link to patientenberatung.de
Would you like to know more about “medical malpractice”? The “Guide to Patient Rights” provides further information.
Link to the Guide to Patient Rights
How do you make a claim for compensation?
Medical malpractice can have serious consequences for those affected. Required follow-up treatments, pain or permanent physical impairment can mean a 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 an out-of-court agreement is not possible, lawsuits can be brought before the civil courts. Representation from a lawyer may then be necessary. Lawyers specializing in medical law can be sought through bar associations or lawyers’ associations. In addition to the lawyer’s fees, there is also the cost of the court process to factor in. Those affected who do not have enough funds to hire a lawyer and conduct legal proceedings can apply for legal aid from the competent court.
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.
How common is medical malpractice?
There are no comprehensive federal statistics concerning medical malpractice or medical malpractice allegations. There is a statistical survey report from the expert panels and arbitration boards published by the federal German Medical Association (Bundesärztekammer), bringing together the data recorded by the expert panels and arbitration boards of the State Chambers of Physicians.
In addition to the above, the Federal Medical Review Board (MD Bund) publishes annual statistics about the expert reports drawn up by the Medical Review Boards on medical malpractice allegations by patients with statutory health insurance.
- Bundesministerium für Gesundheit. Behandlungsfehler: Ansprechpartner, Statistiken. Aufgerufen am 22.04.2020.
- Bundesministerium für Gesundheit. Publikation: Ratgeber für Patientenrechte. Aufgerufen am 21.04.2020.
- UPD Patientenberatung Deutschland gGmbH. Behandlungsfehler & Recht auf Schadensersatz. Aufgerufen am 22.04.2020.