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When has malpractice occurred?

Your medical professional providing treatment in Germany must carry out medical treatment according to the current professional standards. If treatment fails to meet these requirements, he or she may have committed malpractice against which you can take action. We describe below what types of malpractice are distinguished between and who bears the burden of proof in case of doubt.

Types of malpractice

Malpractice has always occurred when the party who provided medical treatment did not adhere to the current professional standards applicable at the time of the treatment when doing so, thus causing damage to your health. In this case, you may be able to claim compensation or damages for pain and suffering against the medical professional providing treatment or the hospital.

If a possibility exists that your health has been damaged through the malpractice, the medical professional providing treatment must inform you of this. If for instance your doctor injects you with a medicine, and it is therefore to be feared that your health might be damaged, he or she must point this out to you. If, by contrast, malpractice occurs from which no health damage is to be feared, your medical professional providing treatment is only obliged to inform you if you have explicitly asked about this.

If you have not received this information, but you presume after having received treatment that malpractice has been committed, please read the information at the end of the page as to how you can proceed.

It is important that you should realise that even if you consider treatment to have been poor, this does not necessarily constitute malpractice. The important thing is for the treatment not to deviate from the professional medical standards in an unreasonable way. The standard provides information on what conduct can be demanded and expected from a conscientious, attentive medical professional providing treatment in the concrete situation in professional terms at the time of the treatment. The professional standard reflects the most recent state of scientific knowledge and medical experience which is needed in order to achieve the treatment objective in medical terms, and which is tried and tested. It is however usually not possible to assess this until medical experts have been consulted. These can ascertain which medical procedures are still in line with the professional standard, and which are not.

It does not automatically constitute malpractice if a swab is left in the patient’s body after an operation. Instead it must be ascertained whether an accusation can be levelled at the medical professional providing treatment. This is the case if the medical professional providing treatment did not take the necessary safety precautions. In the case at hand, the woollen swabs were marked with black threads and the attending physician carried out a check. The doctor deliberately did not count the swabs since counting them can easily cause damage to the patient’s health. Miscounting or missing an already removed swab can lead to renewed, prolonged checks of the surgery site or even to opening the wound, and may impair the success of the operation. This therefore did not constitute a deviation from the professional standard – and hence was not deemed as malpractice (Federal Court of Justice [BGH] judgment of 4 October 1957, ref.: VI ZR 235/56 paras. 6 and 7).

The following cases constitute examples of potential non-compliance with professional medical treatment standards:

All physicians and dentists carry out examinations to judge the patient’s state of health. This also includes testing the proper operation of medical equipment used for this purpose. The outcome of such an examination is known as medical findings. Malpractice may apply if a physician or dentist failed to acquire medical findings, or misinterpreted them, or if he or she did not take the necessary action ensuing from the findings.

The case-law presumes for instance that an incorrect acquisition of medical findings applies when an antipsychotic, which increases the risk of heart disorders, is administered without the doctor checking the cardiac rhythm every six months (Federal Court of Justice judgment of 24 February 2015, ref. VI ZR 106/13, para. 12).

Every doctor reaches a diagnosis on the basis of medical findings. Malpractice when making the diagnosis tends to be presumed somewhat rarely since the symptoms of an illness frequently point to a variety of illnesses and the human body can react to a disease with differing degrees of severity. Malpractice is only affirmed if the findings acquired by diagnostic means are not justifiable for a conscientious doctor (Federal Court of Justice 8 July 2003, ref.: VI ZR 304/02, Karlsruhe Higher Regional Court, judgment of 14 November 2007, ref.: 7 U 251/06).

An incorrect diagnosis applies for instance if, during the birth of a child, there is a suspicion of a larger-than-average child, and the doctor has failed to appreciate the easily-recognisable situation in which the child’s shoulders become caught behind the woman’s pubic symphysis, or has failed to take adequate medical measures (such as changing the position of the mother, applying labour inhibitors, targeted obstetric manoeuvres for the inner rotation of the front of the child’s shoulders, etc.) (Oldenburg Higher Regional Court, judgment of 15 October 2014, ref.: 5 U 77/14).

Patients must consent to the medical intervention prior to treatment since this would otherwise constitute an unjustified physical assault as a rule, which would constitute a criminal offence. Effective consent is contingent on the patient having received comprehensive information on how the intervention is to take place, its prospects for success, its risks and any potential alternative treatment. The physician must also provide information on risks that occur only very occasionally if the patient’s life would be considerably adversely affected should they occur.

An informational error applies for instance if the documented information provided relates to a different treatment and was only provided in summary form. Patients must be unambiguously notified of the risks involved in the medical treatment when being informed (Higher Regional Court order of 9 March 2015, ref.: 1 U 10/14).

Risks may occur in medical treatment which are not primarily related to the particularities of the human body, but are a function of the clinical operations and the medical practice, and which can be completely mastered in objective terms through the proper organisation and coordination of the treatment.

Malpractice therefore applies as a rule if air bubbles from the flushed tube enter the human body during a cardiac catheter examination and lead to a blockage of the coronary arteries, as a result of which the patient has an infarction in the right hemisphere of the brain (Schleswig-Holstein Higher Regional Court, judgment of 29 August 2014, ref.: 4 U 21/13).

An organisation and coordination error is also affirmed if an unqualified carer, for instance a 10th-semester medical student, is assigned to monitor the patient after an operation has been carried out, and the student makes erroneous decisions which adversely affect the patient (Mainz Regional Court, judgment of 9 April 2014, ref.: 2 O 266/11).

As a rule, an incorrect diagnosis will also entail an objectively incorrect form of therapy. Having said that, the physician may also opt for the wrong therapy even after making the right diagnosis.

If for instance treatment with the wrong antibiotic is continued although the result of a urine culture has shown the presence of a bacterium which was resistant to it, this is malpractice as a matter of principle. If, by contrast, the incorrect therapy does not cause damage to health, there is no malpractice. In the case at hand, the patient did not die from the organism that was identified, but from another multidrug-resistant organism, so that there was no malpractice since another antibiotic would also have been ineffective (Sachsen-Anhalt Higher Regional Court, judgment of 12 June 2012, ref.: 1 U 119/11 para. 43).

A doctor may also commit malpractice during an operation. Malpractice for instance applies if the surgical treatment of a brain tumour which aims to completely remove it cannot be correctly carried out because the doctor has not sufficiently opened the skull (Sachsen-Anhalt Higher Regional Court, judgment of 23 October 2014, ref.: 1 U 136/12).

The medical documentation has a primarily therapy-orientated purpose. It enables in particular the doctors in attendance, as well as their deputies and care staff, to be informed about the action that has been taken so far. In order to ensure proper treatment, it can be important for all to know of the patient’s condition, the diagnosis that has been established, how the treatment has progressed and the measures that have been or are to be carried out and the medicines that have been administered. It is therefore necessary to document circumstances which are medically necessary for the further treatment of the patients. Regardless of this medical purpose of documentation, a measure that has not been documented, but which should be documented, is initially regarded in court proceedings as not having been carried out. The first presumption is then one of malpractice.

If for instance a patient who has been diagnosed with the final stage of colorectal cancer and with regard to whom all classical treatment methods have been attempted goes to a medical practice seeking information on the possibilities and chances of alternative treatment methods, and if the physician in attendance refuses to disclose his or her treatment documentation once the patient has died, the consequence of this is that the assertion of the suing wife that the doctor’s entire treatment was inappropriate and had been a complete waste of time is presumed in the proceedings to be correct (Munich Higher Regional Court, judgment of 17 March 2011, ref.: 1 U 5245/10).

The burden of proof

As a patient, you must prove as a rule that the medical professional providing treatment has committed malpractice and that this has directly harmed your health.

Malpractice applies for instance if, at the time of release from hospital, a doctor informs a patient that there is a risk of a thrombosis not in writing, but only orally. In this case, the patient needs to prove that this simple malpractice was the direct cause of the thrombosis which he subsequently suffered. (Munich Higher Regional Court, judgment of 19 September 2013, ref.: 1 U 2071/12).

The extent of the reversal of the burden of proof

There are only situations in strictly-defined cases in which the medical professional providing treatment or the hospital itself must prove that malpractice has not been committed. This so-called reversal of the burden of proof as a rule only covers the causality of the malpractice for the primary health damage, and not the secondary health damage or the property damage derived from it.

If for instance the alcohol used for disinfection in an emergency Caesarean section is accidentally contaminated, causing a strong allergic skin reaction in the new-born child, this constitutes primary (direct) health damage. In the case at hand, the alcohol was sourced from the hospital’s own pharmacy, and was presumably mixed with the residue of another chemical when it was decanted into a vessel in the operating theatre. This error can only come from the hospital’s operations, and was therefore the sole responsibility of the hospital. This consequently leads to a reversal of the burden of proof to the disadvantage of the clinic. The clinic therefore had to prove that this malpractice did not cause the new-born child’s allergic skin reaction.

The new-born child suffered hearing and vision disturbances several days later. One ear became completely deaf, and the other one suffered 75% deafness. The new-born child became blind in one eye. Such damage constitutes secondary health damage. The patient bears the full burden of proof in this regard. He or she must prove that the hearing and vision disturbances were a consequence of the allergic skin reaction. (Federal Court of Justice, judgment of 9 May 1978, ref.: VI ZR 81/77).

Reversal of the burden of proof applicable to secondary health damage

The reversal of the burden of proof can also extend to secondary health damage in very rare cases. This is always the case if it is typically closely related to the primary health damage and the doctor’s examination and treatment are also particularly intended to prevent such damage.

If, for instance, a paediatrician does not issue an instruction for a child to be examined by an ophthalmologist soon despite having documented a squint in the U5 check-up, he or she commits a gross misdiagnosis. Paediatricians’ basic knowledge includes knowing that a squint always needs to be treated within three to four months because it is a symptom of various serious diseases of the eye. In the case at hand, the child’s right eye first of all became completely blind, followed by the left eye. Had treatment been given in time, the left eye might have been able to retain 30 % of its eyesight.

In the case at hand, the court affirmed the causality of the gross malpractice for the primary health damage , which it considered to be constituted by the presence and size of the eye tumour. It furthermore extended the reversal of the burden of proof brought about by the gross malpractice to the secondary health damage – namely the reduction in eyesight caused by the destruction of the retina by the tumour – by classifying it as a typical consequence of the primary damage (Karlsruhe Higher Regional Court, judgment of 14 November 2007, ref.: 7 U 251/06).

Case groups of the reversal of the burden of proof

In the following cases, you do not have to prove that the malpractice was the cause of the direct health damage. Instead, the medical professional providing treatment or the hospital has to prove that the health damage would also have taken place had the treatment not been incorrect.

As a rule, patients do not have to prove the causality of malpractice for the health damage that has occurred if it is to be classified as “gross”. Gross malpractice is contingent on misconduct on the part of the medical professional providing treatment that does not appear to be understandable or justifiable in medical terms. This is the case for instance if there is no reaction to unambiguous findings, or if standard methods to counter known risks are not applied for no reason. What is more, circumstances must be missing which can alleviate the accusation of malpractice (Federal Court of Justice, judgment of 10 May 1983, ref.: VI ZR 270/81 para. 15). It is sufficient here for the gross malpractice to be a potential cause of the damage that occurred. The gross malpractice as such does not have to be likely to lead to the damage (Federal Court of Justice, judgment of 16 November 2004, ref.: VI ZR 328/03). The medical professional providing treatment, by contrast, is not liable for the health damage that occurred if he or she can prove that it is completely unlikely that the gross malpractice caused the primary health damage .

The reversal of the burden of proof aims to make it easier for patients to obtain damages by releasing them from evidentiary difficulties. These are to be transferred to the medical professional providing treatment in the event of gross malpractice because of the gravity of the error (Federal Court of Justice, judgment of 9 May 1978, ref.: VI ZR 81/77).

Gross malpractice entailing a reversal of the burden of proof for instance applies if the medical professional providing treatment does not initiate any further measures for the patient such as in-patient tests and hospitalisation, despite elevated blood pressure and several instances of unconsciousness. Because of the reversal of the burden of proof, it was presumed in this case to the benefit of the patient in question that all the impairments of her kidney function which were subsequently identified, and the resultant treatment, were due to the fact that the medical professional providing treatment had not carried out the acquisition of medical findings that was medically necessary in good time.

The medical professional providing treatment was also unable to prove that the non-occurrence of the kidney disease, entailing the necessity to undergo dialysis and two kidney transplantations, would have been completely improbable if the findings had been taken in good time. True, according to expert witnesses, there was a high probability that the kidney disease was well advanced and would have progressed in the same way even if the finding had been taken in good time. However, according to the expert witnesses, with children of the patient’s age (15), there was a probability ranging from 1 % to 10 % that the kidney could have been completely healed had the proper action been taken at the time when the finding was not taken. It was hence not completely improbable that the kidney disease could have completely healed at the time when the finding was not taken, and hence the doctor was liable for damages (Hamm Higher Regional Court, judgment of 3 July 2015, ref.: I-26 U 104/14, 26 U 104/16).

In rare cases, the patient does not have to prove the causality of the malpractice for the health damage that has occurred even if the medical professional providing treatment has only committed simple malpractice as to the taking of a medical finding. The alleviation of the burden of proof benefits the patients in these cases if the medical professional providing treatment had to carry out an examination for medical reasons, but failed to do so. Additionally, it would have had to have been a gross error if the medical professional providing treatment – had he or she carried out the examination properly – had not taken any medical measures on the basis of the result of the examination that was then obtained.

In these cases too, it is to be made easier for the patient to obtain damages by reducing the evidentiary burden. It is presumed in such cases that, had the finding been taken properly, examination results would be available which would have enabled or made it easier for patients to provide evidence. Given that the medical professional providing treatment however particularly did not carry out the necessary examination, the provision of evidence is made even more difficult for the patients, over and above the normal evidentiary difficulties. This is because due to the non-existence of the examination results there are as a rule many further causes of damage which can be considered for the health damage that the patient has incurred.

Such an incorrect taking of findings with a reversal of the burden of proof for instance applies if it is ascertained that a pacemaker battery is coming to the end of its working life, but the doctor does not order an immediate check on the pacemaker, and the condition of the device cannot be reliably judged for this reason. If the pacemaker then fails prior to the scheduled operation, and this leads to the complete failure of the patient’s cerebral function, the doctor must prove that this health damage was not caused by the failure of the pacemaker battery (Federal Court of Justice, judgment of 23 March 2004, ref.: VI ZR 428/02).

If the health damage incurred by a patient was caused solely by an error emanating from the organisational ambit of the medical practice or of the hospital, the burden of proof lies with the medical professional providing treatment. The latter must prove that he or she has not contracted any culpability with regard to either the organisation or the training and supervision of the staff. Patients benefit from evidentiary relief in these cases since the health damage which they have incurred originates from a field which is to be attributed neither to the patient – for instance as in the case of risks emanating from the human organism – nor from the core area of medical activity, such as performing surgery. In these cases, patients are unable to fully understand or influence the risks, so that it is not justified to impose the burden of proof on them.

This organisational sphere for instance also includes taking safety precautions to prevent medical aids remaining in the patient’s body. If sharp medical aids are accidentally left on the operating table or on the cover which can dig into the patient’s back unnoticed, it is not sufficient exculpatory evidence for the hospital to state that the transport stretchers are cleaned and re-covered every time they are used (Zweibrücken Higher Regional Court, judgment of 16 September 2008, ref.: 5 U 3/07).

Health damage and damages

If you have suffered damage to your health as a result of incorrect medical treatment, you may be able to assert damage claims against the physician or dentist or the hospital. The health damage that you have incurred includes primary health damage - and secondary health damage which is proven to have been caused by the malpractice.

If the physician in attendance for instance makes a wrong diagnosis by incorrectly interpreting an X-ray image, and therefore fails to recognise that the patient has a broken left index finger, the patient’s state of health caused by the lack of treatment constitutes the primary health damage. If this develops to become further health damage, this is secondary health damage. Such secondary health damage therefore applies if the pain does not abate after the injury, but becomes worse, lasts longer and is accompanied by swelling and dysfunctionality (complex regional pain syndrome).

In the case at hand, the Federal Court of Justice referred the case back to the appeal court as it definitely considered the possibility to exist that the suing patient could prove that the secondary health damage was also caused by the misdiagnosis (Federal Court of Justice, judgment of 12 August 2008, ref.: VI ZR 221/06).

The property damage to be compensated consists of the difference between the situation which actually occurred as a result of the damage for the injured party, and a situation which would exist had the damage not been incurred. This includes for instance loss of earnings, loss of profit, the cost of medical treatment, long-term care costs, medicines, medical aids, additional expenditure caused by the injury, re-training costs, legal costs, compensation for any restriction of ability to pursue gainful employment, burial costs, maintenance payments, etc.

It is therefore possible for instance for the birth of a child to give rise to damage claims in the shape of maintenance payments if a sterilisation was carried out wrongly or genetic counselling was carried out incorrectly (Federal Constitutional Court [BVerfG], judgment of 12 November 1997, ref.: 1 BvR 479/92, 1 BvR 307/94).

What is more, compensation for pain and suffering may also be awarded in certain cases. The latter is to compensate for the gravity and duration of the impairment and suffering which was caused by the malpractice. Its purpose is to make amends.

Compensation of 15,000 Euro for pain and suffering was regarded as sufficient in a case in which the period of suffering of the patient concerned was 14 months. This period was typified by major surgical interventions, a delay in recovery, and above all a temporary artificial stoma with the mental anguish this involves. However, a much larger amount of 40,000.00 Euro was rejected in this case on grounds that such an amount would only have been justified had there been considerable lasting consequences (Cologne Higher Regional Court, judgment of 19 March 2015, ref.: I-5 W 7/15).



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