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§ 630 h German Civil Code (BGB) - The burden of proof in case of liability for malpractice and errors in providing information

(1) An error is to be presumed to have been committed by the treating party if a general treatment risk has materialised which was fully manageable for the treating party and which led to the injury to the life, limb or health of the patient.

(2) The treating party is to prove that he/she has acquired consent in accordance with section 630d and provided information in accordance with the requirements of section 630e. If the information does not comply with the requirements of section 630e, the treating party may assert that the patient would also have consented to the measure had proper information been provided.

(3) If the treating party has not recorded a medically-necessary major measure and its result in the medical records, counter to section 630f (1) or (2), or if, counter to section 630f (3), he/she has not retained the medical records, it is to be presumed that he/she has not carried out this measure.

(4) If a treating party was not qualified to carry out the treatment which he/she performed, it is to be presumed that the lack of qualification was the cause of the occurrence of the injury to the life, limb or health.

(5) If gross malpractice has committed, and if this is susceptible as a matter of principle to cause an injury to life, limb or health of the nature which in fact took place, it is to be presumed that the malpractice was the cause of this injury. This is also to apply if the treating party omitted to take or record a medically-necessary finding in good time where the finding would with sufficient certainty have led to a result which would have given rise to further measures, and if failure to carry out such measures would have constituted gross malpractice.

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