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Arguing with the doctor - you have these rights

2021-08-09T10:38:24.704Z


Munich - Malpractice, incorrect information, a poorly fitting hip prosthesis and a much more expensive service than announced in the cost estimate - patients are always not satisfied with their doctor. What rights do patients have? We spoke to the Munich specialist lawyer for medical law Beate Steldinger. She explains what patients should do when they have problems.


Munich - Malpractice, incorrect information, a poorly fitting hip prosthesis and a much more expensive service than announced in the cost estimate - patients are always not satisfied with their doctor.

What rights do patients have?

We spoke to the Munich specialist lawyer for medical law Beate Steldinger.

She explains what patients should do when they have problems.

If something goes wrong with the doctor, it becomes dangerous.

In the past year, experts from the medical services found 3700 times that there was a treatment error.

In 2019, 87 patients in Germany verifiably died of doctor botch.

But this is probably only the tip of the iceberg: The AOK Scientific Institute estimated in 2014 that around 19,000 hospital patients die each year from preventable treatment errors such as poor hygiene.

More and more patients are fighting back, as the figures show: Last year, 14,000 patients had the medical service of the health insurance companies draw up reports.

However, errors were only detected in 25 percent of the reports.

Incorrect diagnosis or medical malpractice

"It must be clear to the patient that the doctor owes no success to his treatment, but only treatment that complies with the specialist medical standard," explains Beate Steldinger, specialist lawyer for medical law.

"In a doctor's liability case, a bad result cannot necessarily indicate that the doctor has acted incorrectly."

On the basis of the treatment documents, it is usually necessary to check with the help of a medical expert whether the treatment corresponded to the specialist medical standard or not.

Then it has to be clarified whether the existing physical damage to the patient can be attributed to the fault found, explains the medical law specialist.

It becomes difficult with diagnostic errors.

Many patients have gone through a veritable odyssey before the correct diagnosis is made.

Here the saying goes: in hindsight you are always smarter!

The question arises, however, whether the first treating doctor can then be reproached for not having made the correct diagnosis.

The case law is rather cautious in this context.

"If the doctor has made all the necessary findings and he nevertheless arrives at a wrong diagnosis afterwards, the case law is very often merciful to him," says Steldinger.

Scope of the duty to provide information

Before a medical intervention, the doctor is obliged to inform the patient.

What is regulated by law: about the procedure itself, the benefits, possible consequences and risks of the procedure and treatment alternatives.

In the case of interventions that are not necessary, such as cosmetic surgery, the duty to inform is much more extensive.

There are several court rulings on this subject - for example, the Hamm Higher Regional Court decided that a patient must be informed drastically and ruthlessly about risks such as asymmetry before a breast correction (file number: 3 U 263/05).

In the case of liposuction, it must be made clear to the patient beforehand that dents can remain, the Düsseldorf Higher Regional Court made clear (file number: 8 U 18/02).

In a process, the doctor has to prove that the information was given before the procedure.

Therefore, doctors and clinics usually use ready-made forms to document the informational discussion.

Error in the explanation

“Therefore, make sure that you don't just sign everything without reading it carefully beforehand,” explains Beate Steldinger, Munich-based specialist lawyer for medical law. By the way: Written information is no substitute for oral advice. The doctor must also provide information about the follow-up care required, take the time to answer questions, and give the patient time to consider. It is not easy for patients to prove a lack of education. In particular, if there is an information form that has been completed and signed by the patient. Sometimes it is suggested to the patient during the consultation that the operation is a walk in the park. Such statements, however, usually cannot be proven in a process, since the clarification discussion usually only takes place between doctor and patient and without witnesses.

The doctor must also explain the cost of the procedure to the patient if it is unclear whether the health insurance will cover it.

Information about vaccination side effects

If patients are vaccinated, the doctor must inform them beforehand about the risks of the consequences of the vaccination, as well as about possible long-term effects, if any are known.

“In addition, the doctors should also explain that a vaccination does not offer 100 percent protection and that there is a low residual risk,” says Steldinger.

If minors are vaccinated, their custodians must agree.

Difficult relationship with your own doctor

If the relationship is broken, Steldinger recommends changing doctors.

The patient with statutory health insurance also has a free choice of doctor among the statutory health insurance physicians.

The patient can get a second opinion, especially before a complicated surgical procedure.

Entitlement to images and documents

Patients have the right to view their patient data, says Steldinger.

This right arises from Paragraph 630g of the German Civil Code.

This right also includes the surrender of copies of the treatment documents including the imaging (X-ray, MRI, CT) against reimbursement of the cost of copying.

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The question of when a doctor made serious mistakes during an operation, for example, is often not easy to answer.

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© Friso Gentsch / dpa

Transfer of patient data

Patient data is highly sensitive data that a doctor should never simply pass on.

"Breach of medical confidentiality is a criminal offense," emphasizes medical lawyer Beate Steldinger.

If you want to change your doctor, you can ask your doctor to send a copy of the treatment documents to the new doctor against reimbursement of the copy or postage costs.

“The aim of the documentation is, among other things, to ensure further treatment by an accepting doctor.

if, for example, a doctor retires or is suddenly absent for other reasons, ”says Steldinger.

Who bears the costs of litigation?

Anyone who wants compensation or compensation for pain and suffering from their doctor because of a clarification or treatment error has to be aware of a few things: In the event of a dispute, patients are obliged to prove errors they have alleged.

If an out-of-court settlement fails, only a judicial dispute remains.

Usually a court will commission an expert opinion in a dispute between doctor and patient, which makes the dispute very expensive.

Those who have legal protection insurance have an advantage.

Because the doctor or his insurance only have to bear the costs in the event of failure.

Trouble with medical bills

In the case of a statutory health insurance patient, a statutory health insurance physician is generally not allowed to invoice any services privately. Nowadays, however, many statutory health insurance doctors offer additional privately paid services, so-called individual health services (IGeL). However, this must be agreed in writing with the patient prior to treatment. Dental treatments have not been fully covered by statutory health insurance for many years. The dentist has to present the funded patient with a cost estimate in advance, which will be checked by the health insurance company. Through the notification from the health insurance company, the patient knows what costs he has to bear himself. As with craftsmen, the case law tolerates a certain excess of up to 20 percent of the cost estimate.The same applies to privately insured patients. In the event of major deviations, the doctor must inform the patient in good time before the treatment or before the next treatment step, so that the patient still has the opportunity to refrain from the treatment.

What contact points are there for patients?

If you do not want to call a lawyer immediately if you suspect a medical malpractice, you can, as a legally insured person, first contact your health insurance company.

This is obliged to support patients here.

The health insurance company will commission a specialist medical report from the medical service of the health insurance companies.

There is also the option of contacting the expert body for medical liability issues at the Bavarian State Medical Association in Bavaria.

There, too, medical liability cases are examined by experts.

This procedure is also free of charge.

However, the other side must agree to the procedure.

Patients can also complain in hospitals.

For almost ten years, clinics have had to provide patient-oriented complaint management.

You might also be interested in: Forget a cloth in your stomach during surgery.

Source: merkur

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