Civil liability for mistakes in the treatment of patients and notification in German law of patients’ rights


This paper contains an introduction, four separate parts and the conclusion. In the introduction was first exposed patients’ rights in Germany before their codification, and then we talk about general characteristics and objectives of the political and legal rights of patients. The first part of paper is dedicated to the treatment contract and his place in the German Civil Code, that set by the legislature. This is about typical contractual obligations of its parties and special responsibilities of doctors to patients. The second part relates to the peculiar duty of doctors to inform patients about their own and others’ mistakes in treatment. The third part includes responsibility for mistakes in patient care. Starting from the premise that the mistake is a negative deviation from the medical standard, the author talks about the concept of medical standards and the principle of freedom to choose the method of treatment, and what treatment means. The fourth section deals with the burden of proof for liability for negligent medical treatment and informing the patient. There is, in fact, a word of facilitating evidence in favor of the patient, as it has found and developed jurisprudence, and now these benefits translated into the legal standard which is particularly noticeable feature of the German health medical law.
The author concludes that the German law on patients’ rights has a special meaning for patients, doctors and lawyers in Serbia. The special attention is drawn to its provisions regarding the treatment contract, which the legislator settled in the Civil Code. They encourage reflection on whether the contract of treatment has the place in the future Serbian Civil Code which is preparations are underway. In addition, special attention is given to the provisions of the new German law which obliges the doctors to inform the patient of his and someone else’s mistakes in treatment, as well as provisions on the burden of proof in lawsuits against doctors. The author states that Germany is the only one, so far, the country in Europe that legislators in the form of these rules means to maintain a balance of interests between doctors and patients. For those who are not ready to go down that path, this could be at least an ideal to be strived for.