Medical liability: what happens if there is a treatment error? Mistakes can always happen – even in medicine. However, a doctor naturally works with the greatest possible care, but what to do if a treatment error occurs? Is there medical liability? Jurisprudence has formed case groups for this purpose. In this guide, we explain what this means for patients and physicians. The standards of medical care are set by the medical profession, not by lawyers. Accordingly, if there is a “failure to meet the physician’s quality standard,” then there is a treatment error. The standard always refers to the current state of research and science. If a patient sues a doctor, external experts are called in to assess the nature of the error. A lawyer needs this expert opinion to be able to argue in court and, if necessary, even to obtain compensation for pain and suffering.
Courts must always call in external expertise
No lawyer or judge can be briefed on medical standards, because this field of expertise is extremely comprehensive. Therefore, an expert witness must evaluate the medical work for the court and prepare a (written) expert opinion from it. The expert is also there to answer questions from the lawyers or to explain factors in more detail. The standards are adapted to the respective field. Accordingly, a general practitioner has fewer requirements regarding cardiology than a cardiologist. Case law has defined different groups of cases and set appropriate rules. A medical malpractice attorney can help!
Mediation boards and expert committees
As a patient, the possibility of a free expert opinion is open via the well-known expert commissions and conciliation boards. This path is also used, because in 2017, for example, there were 11,100 applications for this. However, the voluntary procedure can only be opened if the person treating the patient gives his or her consent – relatives cannot do this. Consequently, reference is made to the judicial procedure. An alternative would also be the medical service of a health insurance company, which may provide the patient with an expert opinion. If the amount in dispute is over 5,000 euros, then the procedure via the competent regional court is always the better way. A chamber has also been set up here with regard to medical liability issues. The treating party must act quickly here, however, because various deadlines must be met. The treating party must indicate the readiness to defend together with a lawyer, because there is a lawyer’s obligation. If the deadline is not met, then legal disadvantages arise and in court there would possibly be a default judgment.
Physicians must contact liability insurance company immediately
If the physician is faced with an allegation of malpractice, then the liability insurance company should be contacted immediately. This is because a patient will want to make a claim for pain and suffering and damages including acknowledgment of malpractice. In the course of this, the liability insurance company will ask questions of the physician and reflect his or her view of the treatment. The insurer will then contact the patient or the patient’s lawyer and negotiate the claims. However, if the treatment error is not substantiated and cannot be enforced in court, then the insurer will reject the claim.
What happens if there is a diagnostic error?
A doctor’s job is to find out what the patient is suffering from at the outset. That way, the necessary steps for treatment can be taken. However, not every wrong diagnosis is also a diagnostic error. It must be examined whether the interpretation of a finding is also medically justifiable. Case law is correspondingly restrained.
What is a diagnostic error?
A diagnostic error is not a diagnostic error, because there are significant differences. In the case of a diagnostic error, it is a question of how justifiable the interpretation of the findings is in the first place and whether this is justifiable as already described. If the accusation is an error in ascertaining the findings, then it must be examined whether the treating physician has actually ascertained all the necessary findings. Once again, the standards that apply to the respective specialty apply here.However, an error may also exist if complaints or other causes have not been considered.
Does medical education have to take place?
It is important that patients see a doctor on the basis of trust. The patient trusts in an expertise and wants to be informed extensively – especially before surgical interventions, for example, this would also be obligatory. The patient has the right to be informed about possible damage or consequences. The patient must always have an overview of the treatment and must also be able to form his own opinion about it. Thus, in case of doubt, he can also refuse and ask for a second opinion. For the clarification, the doctor must also use simple language so that this is comprehensible for the person – without medical terminology. In order to prove that the patient has been informed, the patient should also sign an appropriate document beforehand. Clarification can only be dispensed with if the injured person is unresponsive or if an emergency operation must take place. Since it is also a life-saving measure, there is also no claim to the medical malpractice law, because without the measures the patient would possibly no longer be alive.
Can the physician be held liable for documentation errors?
When a patient has been cared for, then a patient record is created. From this, at a later date, it can then also be taken which examination results have been obtained and whether there were therapeutic measures. A patient file is also there for the protection of the medical practitioner, because in this way evidence of the treatment can be presented. Furthermore, there is also the obligation that this file is created and continuously updated. A lack of documentation is to the detriment of the patient, which could lead to serious decisions. A breach of duty is critical for the doctor, because according to medical liability law this definitely leads to a claim for damages. Especially if a hospital stay became necessary afterwards.
Medical malpractice law: what cases have there been in the past?
The Higher Regional Court of Cologne had awarded a plaintiff 20,000 euros in damages for pain and suffering (Case No. 5 U 76/14), because there was a lack of patient information. The doctors had given the patient a drug after surgery for breast cancer, but it had led to permanent hair loss. The doctors had not mentioned the risk. However, there have also been cases (Case No. 26 U 63/15) with damages for pain and suffering of 100,000 euros because skin cancer was detected too late. The Higher Regional Court of Hamm awarded this to the husband of a deceased patient because she had gone to the doctor because of an injury to her toenail. The doctor had taken a nail sample and detected a bacterial infection – but not the skin cancer, because no dermatological examination took place. The wife died from the disease. The husband was entitled to damages for pain and suffering as a result.
