Arztstrafrecht

1What is it about?

Medical criminal law concerns criminal allegations against female and male doctors, nurses and medical staff in connection with the treatment of patients. The central allegation is usually negligent bodily harm (Section 229 of the Criminal Code) or, where the outcome is fatal, negligent homicide (Section 222 of the Criminal Code), based on an alleged treatment error. Treatment without the patient’s effective consent can also be a criminal offence where the duty to inform the patient was breached, since under both civil and criminal law every medical intervention first satisfies the elements of bodily harm (Section 223 of the Criminal Code) and requires justifying consent.

As a location with numerous clinics, practices and a renowned university hospital, the Heidelberg area is particularly often affected by proceedings of this kind. The allegations span all medical specialties: in surgery and orthopaedics, they often concern allegedly faulty operating technique, the wrong choice of implant or overlooked complications. In internal medicine, radiology and general medicine, misdiagnoses or delayed diagnoses are often at issue, for example in cases of heart attack, stroke or cancer. In obstetrics and gynaecology, it is often the response to complications during birth that is in question, in anaesthesia dosing and monitoring errors, and in dental and maxillofacial surgery nerve damage or faulty procedures. In addition, allegations of billing manipulation (Section 263 of the Criminal Code) or of corruption in the healthcare sector (Sections 299a, 299b of the Criminal Code) may also arise.

2Typical case scenarios

• Allegation of a faulty operation, for example in orthopaedic or visceral surgery procedures, with resulting harm to the patient.
• Allegation of a delayed or incorrect diagnosis in internal medicine, radiology or general medicine, for example in cases of heart attack, stroke or cancer.
• Allegations relating to obstetric care, for example delayed intervention in the event of complications during birth.
• Allegation of a failure to inform: the patient was allegedly not adequately informed about risks or treatment alternatives.
• Investigation over dosing or monitoring errors in anaesthesia or intensive care medicine.
• Criminal complaint following an incident in dental or maxillofacial surgery, for example a nerve injury.
• Allegation of incorrect billing of services to statutory or private health insurers.
• Public prosecutor’s investigation following a complaint by the patient, relatives, or an opinion from the Medical Review Board.

3Frequently asked questions

4How the proceedings unfold

1. Complaint or opening of investigationA criminal complaint by the patient or relatives, often based on an opinion from the Medical Review Board or an expert commission.
2. Securing the treatment recordsObtaining the patient file, imaging and documentation, where necessary a search of the practice or clinic.
3. Expert opinionObtaining a medical opinion on whether the specialist medical standard was met.
4. ConclusionDiscontinuation for lack of suspicion, discontinuation subject to conditions, a penalty order, or an indictment.

5What requires particular attention

• Do not comment on the allegation to the patient, relatives or clinic management before you have received advice.
• Do not alter entries in the patient file retroactively, even for supposed clarification, as this can be regarded as forgery of documents.
• Notify your professional liability insurer immediately and, if you have one, your legal expenses insurer.
• Preserve consent forms, surgical reports, nursing documentation and communications with the patient in full.

6How we defend you

We work closely with independent medical experts to provide a professionally grounded assessment of the treatment, from the operative technique through to the diagnosis and the documentation. We examine whether the specialist medical standard was met, whether causation between the alleged error and the harm is established, and whether the patient’s consent was effectively obtained.

Our defence extends from support already during the investigation proceedings, for example in connection with access to the case file and responding to an expert opinion, through to the trial before the court. We represent female and male doctors as well as medical staff of all specialties, from surgery and orthopaedics through internal medicine and anaesthesia to dental and maxillofacial surgery, and where necessary also accompany parallel professional and licensing proceedings.