Medical malpractice: what to do?

If it can be proven that something went wrong with the supply, you can claim compensation. How to get free help

Surgical instrument left behind in the patient: treatment errors are not always so clear

© iStock / Lukasz Panek

A forgotten swab in the abdominal cavity? Then the matter is clear: something clearly went wrong with this procedure. Most of the time, however, the accusation of malpractice is more difficult to understand. For example, when a patient is harmed by an incorrectly prescribed medication, a misdiagnosis, neglected treatment, incomplete information or an organizational error in the hospital.

"Basically there is no guarantee of a cure or success in medicine," says Dr. Max Skorning from the Medical Service of the National Association of Health Insurance Funds (MDS). But every patient has the right to be treated by their doctor, in the hospital or in the care facility according to the currently valid standards. In several thousand cases each year, however, exactly this does not happen.

Clear up suspicion

If a patient is harmed due to a malpractice, he is entitled to compensation, for example for loss of earnings due to a longer stay in hospital or in the form of compensation for pain and suffering. There are various free ways in which he can get his rights. To do this, however, he usually has to prove three things: A mistake was made. He has suffered damage. The bug caused this damage.

Dr. Max Skorning is Head of Quality and Patient Safety at MDS

© W & B / Carsten Behler

In any case, the patient should speak to his treating doctor first. "Ideally, the suspicion clears up," says Skorning. Then the relationship of trust will continue to exist. If the doctor refuses a conversation or cannot explain how the damage occurred, the patient should seek help from a third party.

The independent patient advice service provides free information about the possibilities, for example on the toll-free hotline 0800/0117722. "Many patients first need basic information in order to be able to decide which path is the right one for them," says press spokesman Jann Ohlendorf.

Health insurance companies are required

Max Skorning recommends going through the statutory health insurance. "The law provides them as a contact person." In fact, the health insurers are obliged to investigate a case reported by the patient free of charge. If you think the suspicion of a mistake and the resulting damage is plausible, you usually forward the case to the Medical Service of the Health Insurance Fund (MDK), which operates 15 facilities nationwide. At the responsible body, neutral experts check all documents and prepare an expert report.

In order to provide the necessary information, the person concerned should be able to describe in a memory log what exactly happened. If he does not have all the documents relating to the therapy provided, he may have to release his doctor from the obligation of confidentiality.

The MDK assessed 13,500 cases in 2017. In 20 percent, the experts found a treatment error that they also considered to be the cause of the damage. All assessment results are brought together at the MDS and ultimately end up at Skorning, who heads the quality and patient safety department there.

Expert opinion without legal obligation

If the patient is entitled to compensation according to the expert opinion, he can agree on the amount with the liability insurer of the doctor or hospital. However, a positive report does not oblige you to pay. On the other hand, only the patient himself receives a negative, not the other side. This can be beneficial if he then wants to hire a lawyer and go to court.

The situation is different with the second free way to compensation, which is also open to private patients: via the state medical associations. They have set up expert commissions or arbitration boards in which doctors examine the case: "Free and independent in their decision," emphasizes Erik Bodendiek, President of the Saxon State Medical Association. Suspected errors are reported to the office; this prepares the report and sends a recommendation to the liability insurance.

11,100 cases were brought to the medical associations in 2017. Out of a total of 7307 decisions, a treatment error was recognized in 1783 cases (i.e. 24 percent) and the patient's claim was considered to be justified. However, these reports are not legally binding either. The doctor concerned must consent to the procedure that his chamber and his liability insurer jointly finance. In addition, there must not already be a lawsuit.

Legal action is always possible

Even before they contact their statutory health insurance fund, patients can hire a lawyer who ideally specializes in this field. A lawsuit is also always possible during or after an assessment or arbitration procedure. The patient has to bear the costs himself, regardless of whether he reaches an out-of-court settlement or loses it in court.

A process can also drag on for years. "An MDK report takes an average of three months," says Skorning. According to Bodendieck, things are also much faster via the medical associations. In general, many patients are satisfied even with a negative opinion, Skorning has observed. "It makes it easier for you to be certain that everything went right for me."

© W&B

The free way to compensate for the damage

Anyone who suspects a medical mistake can have the case examined by a third party - without going to court immediately.