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Who helps if you suspect malpractice?

To err is human, but in medicine it unfortunately frequently causes problems for your health with which you might have to live. This makes it all the more important for mistakes to be detected so that lessons can be learned from them and their adverse effects can be remedied as well as is possible. You will find information below on who can help you if you suspect that you may have been the victim of malpractice.

If you suspect that malpractice has occurred, thus causing damage to your health, you should first of all contact your doctor, dentist or hospital. Your doctor, dentist or hospital has a statutory obligation to answer your questions truthfully.

If this discussion does not lead to a satisfactory result, there are various institutions to which you can turn.

Arbitration procedure before going to court

Before you take court action against your doctor or dentist or the hospital because of presumed malpractice, you can go through out-of-court arbitration proceedings in order to resolve the dispute.

Arbitration proceedings in the Land Medical Associations and dentists’ bodies are free of charge. However, you have to meet the costs of travel, interpreters and representation, such as a lawyer, yourself. Arbitration proceedings have the advantage for you that a settlement can be reached more rapidly than in court proceedings. Arbitration proceedings do not entail a legal disadvantage for you. This means that you can take the matter to the civil courts at any time if arbitration was unsuccessful.

The Land Medical Associations operate expert commissions and arbitration agencies. These are staffed with lawyers and doctors who have specialist qualifications. Arbitration proceedings can only be carried out if both you and your doctor agree to arbitration. You can obtain further information on the tasks and proceedings of the expert commissions and arbitration agencies from the German Medical Association.

If you presume that your dentist has committed malpractice, the dentists’ representative bodies have dispute resolution procedures available. You can have expert proceedings to ascertain whether the dental treatment was carried out properly. If the expert reaches the conclusion that malpractice has been committed, you should inform your dentist accordingly. You can then try to find a solution together with your dentist. If this is not possible, you can naturally still take the matter to court. You can obtain further information from the dentists’ representative bodies.

Recourse to the German civil courts

If your doctor or dentist or the hospital or you are not interested in arbitration, or if the arbitration proceedings have not led to a satisfactory outcome, you can try to assert any right to compensation or damages for pain and suffering in the German civil courts.

You will always have to prove in such civil law proceedings that your doctor or dentist or the hospital has been guilty of negligent conduct or conduct in breach of care leading to damage to your health.

The medical records play a significant role when it comes to such proof. They are a major item of evidence in proceedings before the civil or criminal courts since your doctor or dentist documents all major activities carried out and their results in these records in a normal case. These include:

  • the medical history
  • the diagnosis
  • examinations and their results
  • findings
  • therapies and their effects
  • operations and their effects
  • consent and information.

If the doctor or dentist has not documented the necessary medical measure in the medical records, a court first of all presumes against the doctor or dentist that he/she did not perform the measure. Your doctor or dentist must then try to prove by means of other evidence, such as witness testimony, that he/she indeed carried out the measure, even though he/she did not make a note of it in the medical records.

Since, as a rule, you as a patient do not have the necessary specialist medical knowledge and procedures, German law provides for various relaxations of the burden of proof. You can find further information on this and on the action to be taken in case of suspicion of malpractice in the patient rights guide of the Federal Government Commissioner for Patients’ Affairs (see below).

If you have neglected to provide your doctor or dentist or the hospital with important information on your state of health, such as any intolerances, a court may assign a degree of guilt to you if avoidable health damage takes place after treatment. This also reduces your entitlement to compensation or damages for pain and suffering. You might not even have any claim at all in this case.

Background information: occupational liability insurance

Malpractice can easily entail considerable, costly damages. So that the livelihoods of doctors and dentists in private practice are not placed at risk, and that you as a patient actually receive any compensation to which you might be entitled in the event of an injury, doctors who are in private practice in Germany must have occupational liability insurance in place which meets the costs arising.

The doctors and dentists who are employed in a hospital can join the hospital’s institutional occupational liability insurance as a rule. The occupational liability insurance covers personal injury, material and property damage (such as maintenance costs caused by an erroneous sterilisation), as well as lawyers’ fees and procedural costs.

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