Medical Malpractice Liability: Germany

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Executive Summary

Medical malpractice claims are mostly settled with the liability insurers, often after mediation services of the medical associations or the social health insurers have given expert opinions.  Only 8 percent of medical malpractice cases are litigated.

The causes of liability for medical malpractice under German law are similar to those encountered under the laws in the United States.  German damage awards, however, are still much lower than those awarded in the United States, even though the German awards have increased in recent years.  At the same time, there has been an increase in medial malpractice claims in Germany to about 40,000 claims per year, out of a population of 82.5 million.  

German awards for tangible damages are low, because most of the losses resulting from a personal injury are borne by the social security system.  Treatment and care is provided by the health insurers, and disability pensions by the pension insurers.  These insurers, however, may recover the expenses attributable to the injury through the statutory subrogation of the plaintiff’s claim.  

German awards for pain and suffering are low because of several features of the legal system: there are no juries in civil cases and a plaintiff who claims a higher award than the court adjudicates must bear part of the litigation cost.  Moreover, in determining damages for pain and suffering, the judges are guided by standardized tables that compile the going rates for various types of injuries. 

Damages for pain and suffering have been increasing slowly under this system.  The highest recent awards have been in the vicinity of €500,000 (U.S.$650,000), and these have been awarded for severe physical and mental disabilities resulting from medical malpractice at birth.  For lesser injuries, such as the loss of an eye or a limb, awards have stagnated at below €40,000 (U.S.$52,000) during the last two decades.

The German Health Care System

The German health care system provides universal access and coverage for the entire population.  It is, however, a decentralized and diversified system that consists of more than 200 insurers that compete with each other to some extent.[1]  These insurers are corporations with a public law status and they govern themselves, albeit within the limits of a statutory framework,[2] and under the oversight of a federal agency.[3]  Some 90 percent of the population is covered by the statutory health insurance scheme (the German term for the social health insurance system).  Yet Germany allows high income earners to opt out of the statutory system and to be privately insured, an option that close to 10 percent of the population exercises.[4]

On the side of the health care providers, there is also much diversity and decentralization.  Health care is provided by hospitals (and this includes treatment by physicians within hospitals) and by private practice physicians.  Hospitals may be owned by various entities, both private and public.  Both private physicians and hospitals conclude agreements to become service providers for statutory health insurance schemes and these agreements are negotiated between the head associations of the health care providers and the head associations of the health insurers.

German physicians are regulated primarily by state law.  They form medical associations at the state level, and these state associations are affiliated with a Federal Medical Association.[5]  The medical associations are self-governing bodies.  They shape the responsibilities of the medical profession in many ways, among them, by defining standards of care for medical treatments. 

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German Medical Malpractice Law

A.  Bases of Liability

Although Germany is a civil law country, the concepts of medical malpractice law are not very different from those encountered in the United States.  German medical malpractice law is based on the Civil Code provisions on liability arising from contracts[6] and torts,[7] yet the various causes of liability that can arise within the context of medical treatment have been developed by case law.[8]  The most common causes of liability are defective treatment, wrong diagnosis, wrong medication, lack of disclosure, and unauthorized treatment.[9]

Damages in medical malpractice cases are awarded on the basis of the Civil Code provision on indemnity for losses suffered.[10]  Damages are entirely compensatory; punitive damages are not awarded in Germany.  Even though restitution is the primary mode envisioned by the Civil Code for “making a plaintiff whole,” monetary damages can be claimed instead, and both forms of indemnification are common in medical malpractice cases.[11]

The cost of treatment, rehabilitation, mitigation of the consequences of permanent damage, and long-term care can be awarded in medical malpractice cases and in personal injury cases in general.[112]  In addition, earnings losses are compensated,[13] and damages for pain and suffering are awarded.[14]  Since a major law reform in 2002, damages for pain and suffering are awarded irrespective of whether liability is based on contracts or torts,[15] and this change in the law has increased the number of medical malpractice cases for which damages for pain and suffering can be awarded.[16]

B.  The Influence of the Social Security System on Damage Awards

Due to the extensive safety net provided by the German social security system, a German personal injury victim has fewer out of pocket losses than his American counterpart.  The benefits that mitigate the losses of the German victim include health care as provided by the social or private insurer, unlimited paid sick leave as provided either by the employer or the health insurer, generous disability pensions from the social pension insurance scheme, and, if applicable, welfare benefits.[17]  This social net has a mitigating effect on damage awards[18] even though the social insurers can seek recourse against the tortfeasor or the contractually liable party, by exercising the statutory right of subrogation to the claim of the victim.[19]

The damage-lowering effect of this social safety net is twofold.  First, medical expenses that are incurred through treatment provided through a social health insurer are more standardized than those that might incur in a private setting, and private medical treatment will not be reimbursed, unless it is medically indicated.[20]  Second, a German personal injury victim may have less reason to pursue a claim than his American counterpart, because the German victim has few, if any, out-of-pocket losses.

C.  Damages for Pain and Suffering

Due to the usual absence of significant tangible losses, a German victim of personal injury will make a medical malpractice claim primarily to obtain damages for pain and suffering.  The German awards, however, are very low by American standards, even though in recent years German damage awards have increased for the most serious of injuries.[21]  In the last six years, pain and suffering awards for severe physical and mental disabilities caused by defective treatment at birth have increased from €250,000 (U.S.$325,000) to €500,000 (U.S.$650,000).[22]

For lesser injuries, however, the awards for pain and suffering have stagnated over the last two decades by amounting, for instance, to no more than €20,000 (U.S.$26,000) for the loss of a limb, and to no more than  €40,000 (U.S.$52,000) for the loss of an eye.[23]  German attorneys argue that German damages for pain and suffering are still too low, and they attribute this stagnation to the low number of pain and suffering awards made by the courts.  Only 8 percent of the malpractice cases are litigated and only these cases can lead to a further development of the law.[24]

D.  Procedural Reasons for the Low Pain and Suffering Awards

The main reasons for the low awards for pain and suffering in Germany are procedural.  In German civil proceedings there are no juries or other forms of lay participation.  The cases are decided by professional judges and, even though Germany has no stare decisis doctrine, damages for pain and suffering are often awarded according to precedent, even though each case is supposed to be adjudged according to its merits.  Commercial publishers compile tables of damage awards for pain and suffering for various injuries, and the judges use these as guideposts.[25]

        

The plaintiffs and their attorneys also study the pain and suffering award tables, so as to avoid being ordered to pay part of the trial costs.  In Germany, the cost of litigation in civil cases is borne by the losing party, who has to pay not only the court costs but also the attorney costs and other necessary expenditures of the winning party.[26]  If, however, the winning party makes a higher monetary claim than is awarded, the victory is deemed to be a partial one[27] and the costs are split in proportion to the non-awarded claim.[28]  If a plaintiff asks for slightly more than has been awarded, no cost penalty attaches, because the partial loss is classified as minimal.[29]  If, on the other hand, the plaintiff asks for twice the amount awarded, he will have to split the costs with the losing party.

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The Disposition of Medical Malpractice Claims

A.  The Process

 A victim of medical malpractice is most likely to start the process of claiming damages with the liability insurer of the physician or hospital.  If the victim cannot obtain satisfaction at this level,[30] he may go to court or use the services of a mediation center.  The latter path has the advantage of being free of charge,[31] whereas in litigation the plaintiff bears the risk of being ordered to pay the costs if he loses, and these consist of court fees, the costs of the winning party, and the fees of his own attorney.  Contingency fees are not permitted in Germany.[32]

If the mediation center is of the opinion that there is an injury for which the health practitioner is liable, the victim may again approach the liability insurer.  In 85 percent of such cases, a settlement will be achieved on the basis of the opinion of the mediation center.  In 15 percent of such cases, the plaintiff will go to court, where, most commonly, the court will rule as indicated by the mediation center.[33]  Under this German practice, most medical liability claims are settled out of court, either immediately or after a mediation center has given its opinion.[34]

The mediation centers are operated by the state medical associations, yet they are independent organizations that enjoy much respect for their independent judgment.  The centers are staffed by lawyers and physicians, and evaluations are often carried out on a pro bono basis by volunteering physicians.[35]  In addition to advising plaintiffs on their claim, they also compile statistics on the claims brought to their attention and these are consolidated annually by the Federal Medical Association.  The main purpose of these statistics is medical, to avoid errors in the future.[36]

The social health insurers also provide consultative services for the insured, as required by law.[37]  These institutions also provide evaluations in medical malpractice cases.  The service centers are organized at the state level.[38]

B.  Statistics

There are no official statistics on the incidence of medical malpractice or its cost, and the figures that have been randomly provided by the various stakeholders on the number of claims and their disposition are not always in agreement.  There are no statistics on the size of damage awards, except for the above-described tables on damages for pain and suffering that were awarded in court proceedings.[39]

There is much disagreement on the incidence of medical malpractice.  Consumer advocacy organizations have stated that medical malpractice is committed in 400,000 cases, or even 650,000 cases per year.[40]  According to estimates made by a medical mediation center, some 130,000 malpractice incidents occur in German hospitals and clinics per year.[41]  The number of claims submitted to the liability insurers has been estimated as amounting to 40,000 per year.[42]  Germany has a population of 82.5 million inhabitants.[43]

On the disposition of medical malpractice claim, there is agreement between the insurers and the mediation centers that about one half of the cases are not justified and are therefore rejected.[44]  There also appears to be agreement that not more than 8 percent of the claims are litigated, whereas 92 percent of the cases are settled by the liability insurers.[45]  On the outcome of litigation, however, there is much disparity between liability insurers and trial attorneys.  Whereas the former state that the plaintiff wins only in 6 percent of the litigated cases,[46] a trial attorney stated in 2008 that the plaintiff wins in 50 percent of the law suits brought against private practitioners and in one-third of the lawsuits brought against hospitals.[47]

Concluding Remarks

Although Germany has experienced an increase in medical malpractice claims in recent years and also an increase in damages for pain and suffering for very serious injuries, liability for medical malpractice generally leads to very moderate damage awards.  The main reason for this state of affairs is the extensive safety net of German social law that covers medical expenses and the loss of earnings of the victim.  Other contributing factors to the predictably low damage awards are the absence of juries in civil cases and the liability for litigation costs that are imposed on the losing party and on a party that claims more than is awarded.

           

Most of the medical malpractice claims are settled by the liability insurers and the low incidence of litigation is attributable to the role of the mediation centers of the medical associations and the consultative services of the social health insurers.  These highly respected institutions evaluate claims and make it easier for claimants and liability insurers to reach agreement on a suitable settlement.

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For more information on Germany see:

Prepared by Edith Palmer, Senior Foreign Law Specialist

June 2009

  1. For a description of the German health care system, see U. Weide, Health Care Reform and the Changing Standard of Care in the United States and Germany, 20 N.Y. L. Sch. J. Int’l L. 249 (2000). [Back to Text]
  2. Statutory health insurance is funded through employer/employee contributions. The terms of coverage and the benefits to be provided are governed by Title 5 of the Social Code, i.e., Sozialgesetzbuch Fünftes Buch [SGB V] Dec. 20, 1988, BUNDESGESETZBLATT [BGBl, official law gazette of Germany] I at 2477, art. 1, as amended. Currently employers and employees together pay a contribution of 15.5 percent of the wage. The insurers, however, have some leeway in determining benefit levels. See 15,5% Beitragssatz – bleibt es dabei?, KRANKENKASSENINFO.DE, http://www.krankenkasseninfo.de/zusatzbeitrag-krankenkassen.php (last visited June 1, 2009) [Back to Text]
  3. The oversight agency is the Bundesversicherungsamt, see its website, http://www.bva.de//. [Back to Text]
  4. Mitgliederzuwachs bei den privaten Krankenversicherung weiter rückläufig (Mar. 31, 2007), http://www.pkv-financial.de/wblog/2007/03/31/mitgliederzuwachs-bei-den-privaten-krankenversicherungen-weiter-ruecklaeufig/ (external link. [Back to Text]
  5. The federal medical association is the Bundesärztekammer; see its website, http://www.bundesaerztekammer.de/ [Back to Text]
  6. Bürgerliches Gesetzbuch [BGB], repromulgated Jan. 2, 2002, BGBl I at 42, as amended, § 280. [Back to Text]
  7. BGB, § 823. [Back to Text]
  8. M. QUAAS & R. ZUCK, MEDIZINRECHT 284 (München, 2008). [Back to Text]
  9. E. DEUTSCH & A. SPICKHOFF, MEDIZINRECHT 129-35 (Berlin, 2008). [Back to Text]
  10. BGB, § 249. [Back to Text]
  11. M. Tamm, Der Haftungsumfang bei ärztlichem Fehlverhalten und Rechtsdurchsetzugsfragen im Arzthaftungsrecht, JURA 81 (2009). [Back to Text]
  12. O. PALANDT, BÜRGERLICHES GESETZBUCH § 249, notes 8, 10. [Back to Text]
  13. BGB, § 252. [Back to Text]
  14. BGB, § 253. [Back to Text]
  15. Gesetz zur Modernisierung des Schuldrechts, Nov. 26, 2001, BGBl I 3138, effective date Jan. 2, 2002; M. Gehrlein, Neuere Rechtsprechung zur Arzt-Berufshaftung, VERSICHERUNGSRECHT [VERSR] 1488 (2004). [Back to Text]
  16. H. Strücker-Pitz, Ausweitung der Artzthaftung für Schmerzensgeld bei Schwerstschäden, VERSR 1466 (2007).


    [Back to Text]
  17. W. PFENNIGSTORF, PERSONAL INJURY COMPENSATION 65 (London, 1993). [Back to Text]
  18. Id.; see also R. Rollo, Note, Products Liability: WHY THE EUROPEAN UNION DOESN’T NEED THE RESTATEMENT (THIRD), 69 BROOKLYN L. REV. 1073 (2004). [Back to Text]
  19. Zehntes Buch Sozialgesetzbuch, repromulgated Jan. 18, 2001, BGBl I at 130, as amended, § 116.  The private health insurers have the same statutory right.  See Versicherungsvertragsgesetz, Nov. 23, 2007, BGBl I at 2631, as amended, § 86. [Back to Text]
  20. PALANDT, supra note 12, § 249, note 8. [Back to Text]
  21. Id. The increase in damage awards in Germany is also indicated by the liability insurance coverage that is recommended to physicians. Whereas in the 1980s a physician should have carried a coverage of between 1 and 2.5 million Deutsche Mark (1 Deutsche Mark was then valued at U.S.$0.50), it is now recommended that, depending on the specialty, physicians should carry insurance coverage of between 1 and 5 million Euro. DEUTSCH & SPICKHOFF, supra note 9, at 105. [Back to Text]
  22. W. Wurmnest, Recognition and Enforcement of U.S. Money Judgments in Germany, 23 BERKELEY J. INT’L L. 175 (2005); Strücker-Pitz, supra note 16. [Back to Text]
  23. H. Ziegler & M. Ehl, Bein ab – arm dran. Eine Lanze für höhere Schmerzensgelder in Deutschland, JURISTISCHE RUNDSCHAU 1 (2009). [Back to Text]
  24. Id. [Back to Text]
  25. A. SLIZYK, BECK’SCHE SCHMERZENSGELD-TABELLE (München, 2006). The same publisher, Beck-Verlag, also provides an online database of the most recent pain and suffering awards, http://beck-online.beck.de/default.aspx?modid=79 (external link. [Back to Text]
  26. Zivilprozessordnung [ZPO], repromulgated Dec. 5, 2005, BGBl I at 3202, as amended, § 91. [Back to Text]
  27. ZPO § 92. [Back to Text]
  28. H. MUSIELAK, ZIVILPROZESSORDNUNG KOMMENTAR, § 92, note 2 (München, 2005). [Back to Text]
  29. ZPO § 92. [Back to Text]
  30. AXA Winterthur, a major liability insurer, reported for 2005 that 53 percent of the medical malpractice claims made were rejected as unfounded. See P. Weidinger, Aus der Praxis der Haftpflichtversicherung für Ärzte und Krankenhäuser, MEDIZINRECHT 571 (2006). [Back to Text]
  31. C. Katzenmeier, Aussergerichtliche Streitbeilegung in Arzthftungssachen, ANWALTSBLATT 319 (2008). [Back to Text]
  32. S. Butler, Models of Modern Corporations: A Comparison Analysis of German and U.S. Corporate Structures, 17 ARIZ. J. INT’L & COMP. LAW 555, 601 (2000). [Back to Text]
  33. Tamm, supra note 11. [Back to Text]
  34. Weidinger, supra note 30. [Back to Text]
  35. Katzenmeier, supra note 31. [Back to Text]
  36. Press Release, Bundesärztekammer, Statistische Erhebungen der Gutachterkommissionen und Schlichtungsstellen für das Statistikjahr 2007 (Berlin, 2008), available at http://www.bundesaerztekammer.de/page.asp?his=2.59.5301.5961&all=true (external link (last visited May 26, 2009); M. Merten, Den Ursachen auf der Spur, DEUTSCHES ÄRZTEBLATT A1140 A1140 (2007). [Back to Text]
  37. SGB V § 66. [Back to Text]
  38. D. Psathakis et al., Die Rolle des MDK bei Beratung und Prüfung vorgeworfener ärztlicher Behandlungs- und Pflegefehler, , ANWALT/ANWÄLTIN IM SOZIALRECHT 79 (2008). [Back to Text]
  39. SLIZYK, supra note 25, and accompanying text. [Back to Text]
  40. Weidinger, supra note 30, at 571. [Back to Text]
  41. Krankenhaus-Statistik Jährlich 130.000 Behandlungsfeher, , STERN-DE, Nov. 15, 2007, http://www.stern.de/wissenschaft/medizin/:Krankenhaus-Statistik-J%E4hrlich-130.000-Behandlungsfehler-Kliniken-/602683.html (external link (last visited May 28, 2009). [Back to Text]
  42. K. Bergmann, Jede zweite Klage gegen Ärzte hat Erfolg, FRANKFURTER ALLGEMEINE ZEITUNG FAZ , Nov. 15, 2008, at C2; Weidinger, supra note 30. [Back to Text]
  43. WHITACKER’S ALMANACK 2008 at 845 (London, 2007). [Back to Text]
  44. DBV Winterthur Versicherungen, Ärztliche Behandlungsfeheler: Mehr als die Hälfte aller Vorwürfe unberechtigt, Apr. 23, 2006, http://www.presseecho.de/wirtschaft/3730813832.htm (external link (last visited May 27, 2008); Merten, supra note 36. [Back to Text]
  45. Weidinger, supra note 30; Ziegler & Ehl, supra note 23. [Back to Text]
  46. Weidinger, supra note 30. [Back to Text]
  47. Bergmann, supra note 42. [Back to Text]

Last Updated: 08/07/2012