How to sue a German Hospital or Physician for Medical Malpractice

If you believe that you or a loved one suffered an injury caused by medical negligence (medical mistakes) in Germany, the first step is to stay calm — as difficult as that may be — and to try and collect as much factual information as possible without immediately declaring all out war on the medical staff or the hospital. Why? Because once you openly confront the physicians, nurses or hospital administration with allegations of medical malpractice, they will close ranks, shut up, inform their liability insurer, lawyer up and stall proceedings from here on out. No one will talk to you anymore and everything will go through the official channels, i.e. hospital lawyers who need to coordinate every statement with the medical malpractice insurer.

Step 1: Let the medical doctors explain what happened

Therefore, the much better approach is to not escalate matters at this stage. Instead, ask the physicians, nurses, maybe even other patients calmly to explain what happened. Ideally, you should have another person present at such conversations who can later testify as a witness. The medical information given by the doctors may be complex and you yourself will probably be very emotional. All this makes it difficult to take in all the details and to remember everything later on. Also, if you yourself are the injured person, you cannot testify as a witness in your own case under German civil procedure rules  anyhow (more here). In these discussions, the medical staff may disclose information which is not contained in the official patient records (Patientenakte).

Step 2: Hire an experienced medical malpractice laywer

Civil lawsuits for medical negligence are among the most complicated civil actions in German personal injury law and medical malpractice cases are hard to win for the injured patient. Not only because one can easily get lost in the complexities of modern medical treatment and hospital procedure, but also because the healthcare professionals have the greater resources. Behing every German medical practitioner (Arzt) and every German hospital (Krankenhaus), there is a large insurance company (Haftpflichtversicherung). It is this insurance company, not the surgeon, physician or hospital, that selects the litigation lawyers for the defendent and that decides whether they are willing to settle. In practice, German insurers almost never settle until they absolutely have to. Why? Because many injured patients do not have the strength or the financial means to sue for medical negligence in the first place. Those patients who do initiate a lawsuit in Germany sometimes get worn out along the way, because a medical malpractice lawsuit can take 3-5 years easily. And that is only the first instance. In most cases, insurers automatically appeal the judgment of the German High Court (Landgericht) if they have been ordered to pay damages. That is where many patients settle for much less than what they are entitled to because they dread having to face another 3 years of litigation in the German court of appeal (Oberlangesgericht).

If you want to make it through this exhausting and expensive journey, you need a German litigation lawyer who absolutely knows what he or she is doing and who will give you an honest assessment of what your chances are.

Step 3: Obtain the full patient records

Under German law, every patient is entitled to obtain a full copy of the patient file kept by the physician or the hospital, see section 630g German Civil Code, titled “Inspection of Medical Records”:

(1) The patient is on request to be permitted to inspect the complete medical records concerning him/her without delay to the extent that there are no considerable therapeutic grounds or third-party rights at stake to warrant objections to inspection. Reasons must be provided for a refusal to permit inspection. Section 811 is to be applied with the necessary modifications.

(2) The patient can also request electronic duplicates of the medical records. He/she shall reimburse to the treating party the costs incurred.

(3) In the event of the death of the patient, the rights ensuing from subsections (1) and (2) to exercise the interests under property law fall to his/her heirs. The same applies to the closest relatives of the patient where they assert immaterial interests. The rights are ruled out where inspection runs counter to the explicit or presumed will of the patient.

Nowadays, this means that the patient will most likely be sent a CD or DVD containing the entire medical records in digital format. Or the patient is asked to download the medical information from an online platform. Whether the patient will be able to make any sense of these medical records is another matter entirely. In most cases, especially if the patient has been treated in a German hospital, the patient file will consist mostly of standardized charts, lists and highly concentrated reports full of technical lingo and abbreviations. A very frustrating read for any non-medic.

This brings us to the next problem: Depending on the facts of the case and on what the alleged negligence is, even a very experienced medical malpractice lawyer will often need the assistance of a medical expert who helps assessing the patient file. Many medical malpractice cases are won by putting a finger on what has not been recorded in the patient file, i.e. a negligent omission by the medical staff. Neither the patient itself nor a lawyer will be able to check the hospital records against what is the required standard of medical treatment in a hospital. Thus, if the Plaintiff wants to make a convincing case against the healthcare professionals, hiring a medical expert will in many cases be necessary.

Step 4: Discuss litigation strategy with your German trial lawyer

Once you and your German legal counsel have assessed all available information, possibly with the assistance of a private medical expert, it is time for an open and honest discussion about whether you really want to take your medical malpractice case to German civil court. Are you prepared to deal with the emotional stress and financial burden? If your German trial lawyer tells you that this will be over in 6-12 months and that the case is so string that the Defendant will settle anyway… change lawyers! Because, as mentioned above, insurers of German hospitals or practitioners almost never settle. We have had cases where the German judge flat out told the Defendant (a hospital) that they will lose the lawsuit with flying colours — and the insurer still refused any kind of settlement agreement. Always remember that the physician or surgeon who has actually treated the patient does not get much of a say in the German civil proceedings. So even if the German healthcare professional him- or herself is rather embarrassed about the medical mistake which was made, it is still the insurer who calls the shots, i.e. decides on whether the parties will settle or not.

The financial burden of such a personal injury lawsuit will be significant. While, generally speaking, legal fees in Germany are lower than in the USA or the UK, medical malpractice cases are expensive. One reason is that you will need a specialized and experienced lawyer who will not be cheap. Under German statutory law, contingency fee agreements between lawyers and their clients are prohibited. Also, in addition to your legal counsel you will most likely need to hire a private medical expert to assist with the assessment of the medical records. Once the lawsuit is under way, the German civil court will appoint an official expert witness (gerichtlich bestellter Sachverständiger) to provide a neutral expert opinion on the scientific or medical issues still in dispute after the parties have exchanged their legal briefs. All these costs need to be borne by the Plaintiff and not everything will be fully compensated by the Defendant, even if the Plaintiff wins the case.

If — after full consideration of all these risks and downsides — you still want to go to court, discuss legal strategy with your German legal counsel. The basic principles of making a tort claim under German law are explained in this post on the litigation blog German Civil Procedure. But litigation strategy is more than just what happens in the court room. You should discuss who to sue (e.g. just the surgeon or all the hospital staff), whether to involve the media to create additional pressure, how much to sue for, when to suggest a settlement (if at all) and many more aspects.

Step 5: Initiate the lawsuit

But not before you are absolutely ready and have made the strongest possible case. Some lawyers do not go the extra mile prior to filing the lawsuit. Instead, they submit a half baked statement of claim for the Plaintiff, arguing that it is important to start proceedings early to avoid any risk of limitation and to check whether the Defendant might be willing to settle after all. While this is a bad strategy in any area of law, in medical malpractice cases it is fatal, because neither the Defendant nor the court will take such an unsubstantiated claim seriously. The burden of proof issue is difficult enough for the Plaintiff. The only chance to reverse the burden of proof under German civil procedure rules in a medical malpractice is to be absolutely meticulous and describe every mistake, omission or unclear documentation by the medical staff as precisely as possible.

Step 6: Do not press criminal charges against the German physician or hospital

A typical rookie mistake often made by inexperienced German medical malpractice lawyers is to comply with their client’s wish to simultaneously press criminal charges against the doctor and/or the hospital, e.g for negligent bodily harm (in German: fahrlässige Körperverletzung, s. 229 German Penal Code) or even negligent manslaughter, involuntary homicide (in German: fahrlässige Tötung, s. 222 German Penal Code). As a legal strategy in German tort litigation, this almost always backfires! Why?

Firstly, all civil proceedings come to an end because the civil law judge will stay proceedings until the criminal investigation is over. This can take many months or even years which means that a lot of time has gone by before the civil trial even commences. What is worse: Due to the in dubio pro reo principle and the resulting different rules of evidende in German criminal cases, the medical staff is often acquitted in the criminal trial. Although this outcome of the criminal case is not binding for the civil litigation, it is not exactly helpful for the civil lawsuit, if the Defendant can point to the fact that a German criminal court has not found him responsible of any negligence.

To be clear: If — in step 4 — you come to the conclusion that you do not want to start a civil lawsuit, then you are of course free to press criminal charges. If you are lucky and the German prosecutor finds sufficient grounds to indict the physician(s) and the German court sentences them, that is the time to reconsider taking civil action.

Step 7: Hope and pray

German lawyers use the saying “Vor Gericht und auf hoher See ist man in Gottes Hand“, which means “In a court of law as well as at sea one is entirely at God’s mercy“. This saying applies in particular to medical malpractice suits and their special challenges: Medical experts will have different opinions on certain aspects. Hospital staff may give false testimony to protect themselves or their institution. The judge may refuse to reverse the burden of proof for certain issues in dispute between the parties etc.

Still, having said all that, German law does protect patients that have been wrongfully injured,  see s. 630a et seqq. German Civil Code, the German statutes on patient rights and the law of medical treatment. Based on these statutory patient rights an the specific rules of taking evidence in medical malpractice cases, an experienced German tort lawyer will be able to give you an honest opinion whether your case has any merits.

More on civil litigation and evidence rules in German Courts of law and before German arbitration tribunals:

The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of GP Chambers is well equipped to advise and represent clients from the UK and other English speaking countries. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.