NCJ Number
82848
Journal
Archiv fuer kriminologie Volume: 167 Issue: 5 and 6 Dated: (May/June 1981) Pages: 129-137
Date Published
1981
Length
9 pages
Annotation
Physicians' professional errors can be liable to both civil and criminal suit under West German law if the error involves failure to perform according to the fundamental rules of medical practice.
Abstract
Fundamental rules refer to the axiomatic tenets at the basis of medical science, not to changing practices of a continuously developing discipline. A physician charged with malpractice must be declared in fundamental error of commission or omission by professional peers before the court. Civil action deals with settlement of damages, while compensatory awards for pain and suffering are decided in criminal proceedings. Differences in the U.S. and German systems preclude deterioration of the German situation to the point of American 'defensive medicine' and a 'conspiracy of silence' by the medical profession in self-protection from devastating numbers of malpractice suits. Attorneys in West Germany do not have the motivation of lucrative commissions from large awards won in successful suits. There is no jury trial and the rules of evidence -specifically the doctrine of 'res ipsa loquitur' (the matter speaks for itself) -- does not favor the plaintiff to the point of placing the burden of proof upon the physician defendant. The German system, while enabling civil suit and prosecution for blatant malpractice, also protects physicians from undue liability if their practice does not transgress the basic standards of the medical profession. A total of 34 footnotes are given.