As a milestone in Germany, the black-yellow coalition once praised the law adopted by it in 2013 to strengthen patient rights. But lawyers who deal with malpractices of doctors, it was clear from the beginning that self-praise had no basis.
Law is nothing but a Placebo
The then presiding judge of a doctor’s tribunal coined the phrase that the law did not change anything, did not take anything back, added virtually nothing, did not strengthen the patients’ rights and did not help either the case law or the lawyers: It does not hurt, but it doesn’t help and is, therefore, nothing more than a placebo.
Meanwhile, however, the voices are increasing, finally, want to enforce real improvements for patients. There is the demand to introduce a compensation and hardship fund for the victims of malpractice in Germany, following the example of Austria.
A case that actually happened: The 71-year-old man was lying on the operating table; the open heart surgery was over. The surgical nurse counted the swabs, but one was missing. She recounted again, but the result remained the same. The surgeon felt again, but even then the swab didn’t come to light. Then the doctor decided: The sister was wrong. The ribcage was closed.
Two days later, the man. had to be operated on for acute blood poisoning. The swab was discovered in the pericardium. A clear medical error that almost cost the patient his life. And yet the clinic refused to pay any compensation. The complication was not triggered by the swab, so the reasoning.
Enforcement of Claims for Compensation
Experts estimate that at least 40,000 people claim treatment errors each year. However, when it comes to enforcing compensation claims, most patients, face major problems. Because in medical liability law, the hurdles are very high at the expense of patients. It isn’t enough to prove that the doctor made a mistake. Liability of the physician exists only if the treatment error “with almost certainty” is responsible for health damage.
Expressed in numbers, that would be a probability of at least 95 percent. In other EU countries, on the other hand, there is “overwhelming probability,” that is 51 percent. This difference describes the legal gap existing in this country. Patients also have no chance of compensation or assistance even if a previously unknown complication occurs.
In the U.S however, this law is already in effect, and medical practitioners can be charged to court for errors.