Medical treatment error: Silence for too long

Carola Samov stood in front of the mirror and jerked and pushed, squeezing and pulling. She tried to get the prosthesis out of her mouth. But nothing moved. The dentures sat firmly as grown. In itself, that would have been good if she had not cleaned the prosthesis regularly. She struggled until her fingers hurt. Then she picked up the phone and called her doctor. "Give it a try with a handkerchief," he advised her. When that did not help, she went to practice. With a hammer, the dentist finally knocked the denture off.

Maybe she should have acted at the time: For it was already clear at that time that the new teeth she had been looking forward to simply did not fit. But Carola Samow, 55, had great faith in her dentist. He was young and dynamic, the practice modern and equipped with the latest equipment. In addition, Dranbleiben was more like her personality structure: she tackles things and does not let up. So she thought, the problem with the teeth would solve somehow. But nothing came off. She went to her dentist 31 times for after-treatment, until her collar burst, and for half a year, she suffered pain before seeking assistance. Then Carola Samov sued her dentist.

The new Patient Rights Act is intended to increase transparency and legal certainty in medical treatment. For the first time, the contractual relationship between the patient and his doctor, alternative practitioner, midwife and physiotherapist is regulated by law. So far, the courts have ruled in medical liability cases on the basis of the Civil Code (BGB). This generally says: "Anyone who, intentionally or negligently, unlawfully violates the life, body, health, freedom, property, or other right of another, is liable to compensate the other for the damage." With the new law, the medical liability law gets separate paragraphs. Content will change but little.

Dr. Britta Konradt has specialized as a lawyer on medical liability law, she used to work as a doctor herself and brings in medical and legal expertise. More and more often she has to do with dental problems. Since many patients even invest large sums in treatments and dentures, their willingness to accept everything decreases. "The teeth are too close to the cranial nerves," says Britta Konradt. If the treatment fails, the pain is often unbearable. To make claims legally by way of legal action, one must nevertheless think twice. "The patient carries the piece of evidence in the mouth," says Britta Konradt. As long as the procedure is running, he can not undergo any treatment. How else should an appraiser check whether the dentist or the oral surgeon has actually made a mistake?

The patient carries the piece of evidence in the mouth

When Carola Samov first came to Britta Konrad's office, she was fed up. After the 31st rework she went to her health insurance to have the treatment checked. The statutory health insurance funds also offer this to their patients in their own interest. Because a treatment error often causes immense follow-up costs; If it is possible to prove the mistake, the doctor must be liable for it. The medical service gave Carola Samow an expert who looked at her teeth. She found clear words: With the prostheses, the patient could not chew, she wrote in her report, the teeth would hurt in hot and cold food and drinks, the prostheses were extremely firm and have sharp edges. In short, they would not fit in front and behind.

Carola Samov did well to get confirmation. How had she suffered in the weeks and months before? Once, in the cold winter of 2009, she sat at the bus stop and inhaled. A stinging pain ran through her head. The icy air had touched a tooth and irritated the nerve. She just sat there and howled. Later, she learned to keep her mouth closed in the cold and to wrap a thick scarf around it that helped. The way she learned to make the coffee cold and to warm the salad a bit. She soon gave up on sour fruit, because if she bit into it, it felt like she was chewing on a piece of tin foil. Ghastly. But every time she told her dentist about it, he just said helpfully, she started. For a long time, going to another dentist was out of the question for her. She had invested a good 2500 euros in the treatment, for the trained payroll accountant a lot of money. She wanted to have a good result for that. But the dentist was not ready to make a new prosthesis. Instead, he signaled that the pain was mental."Anyway, dentistry does not help anymore," he said one day. "That made me angry," says Carola Samow.

That was the day she got legal help. In order to assert claims under the Medical Liability Act, the patient - or his lawyer - usually has to prove three things: first, that there is a medical error; second, that damage has occurred; and thirdly, that both are causally related. The fact that the burden of proof lies with the patient often makes it difficult. In Carola Samov's case, it was an advantage that an expert opinion had already been prepared.

This made the lawyer's job easier. Britta Konradt wrote a letter of claim. But the dentist's liability insurance refused the right to compensation. An out-of-court settlement was not possible. Therefore, the lawyer filed a lawsuit for her client at the court. There followed an unpleasant sludge battle. The lawyer of the doctor informed: The patient would smoke. She would drink. It was her own fault if you hurt everything. Such allegations are frequently made; they serve to put the patient in a bad light and at least allocate part of the blame to him. But in the case of Carola Samov, the dentist did not get away with it.

The court commissioned an expert opinion. Again, an expert leaned over Carola Samov and looked into her mouth. And again he shook his head and proved her right. When the case was heard before the district court, the parties agreed to a settlement. If that had not happened, the court would have delivered a verdict. The dentist could appeal and bring the case to the second and perhaps even the third instance. All the time the prosthesis would have had to stay in the mouth because it was the piece of evidence. And the pain would have stayed.

The new Patient Rights Act will not change this problem: even then, the burden of proof remains with the patient in most cases. It turns around only when the patient can prove that the doctor has made a "gross treatment error" - that is, a mistake that a doctor should not undermine. The burden of proof is also reversed under the new law when a beginner has performed an intervention. Then the beginner has to prove that the damage would have been incurred if he was no longer a beginner. But how to turn it and turn it: If a patient is dissatisfied with dentures, so the evidence in the mouth, he must wait with the re-treatment until it is proven that the dentist has made a mistake in the preparation of the prosthesis. Failure to reach an out-of-court settlement can take a long time. For the proof can definitely only be conducted in a legal proceeding with an appraiser, on the basis of which a verdict is issued.

For Carola Samow now, well over two years after her first appointment with her lawyer, the process is complete. Successfully. In the office she can slip a note with her account number across the table. "A few more days, then the money comes from the comparison," says Britta Konradt. Finally Carola Samow can get new third teeth from her new dentist.

Who feels bad treated, should fight back

Treatment errors are not uncommon. This is regularly reported by the medical service of the umbrella association of the health insurances (MDK). How patients can defend themselves Britta Konradt, doctor and specialist lawyer for medical law from Berlin.

ChroniquesDuVasteMonde-woman.de: Can treatment errors be avoided?

Dr. Britta Konradt: Treatment errors can not be completely avoided. No doctor, no doctor purposely makes mistakes. But they happen, and often small causes have a big impact. It can be about life and death. If you feel that something is not going the way it should, you should contact your doctor early on. It is best to try to clarify together whether it is a known complication to be fatal or a treatment error.

ChroniquesDuVasteMonde-woman.de: Do patients, if they want to take legal action against their doctor, always have to be prepared for lengthy procedures?

Dr. Britta Konradt: No, with the help of a lawyer it is often possible to come to an out-of-court solution quickly. If that is not the case and we have to negotiate in court, it often takes years for the proceedings to be completed. You can apply to the court for a procedure for securing evidence. This is much shorter than the whole procedure, but it still usually takes six months. For someone who has a toothache, every day is a torment. The only way to redeem sufferers is to come to an out-of-court solution quickly.

ChroniquesDuVasteMonde-woman.de: Do you advise your client in any case to proceed?

Dr. Britta Konradt: No, everyone has to check that for themselves and make their own decisions. Sometimes the burden of such a process is greater than the benefit.Anyone who can not get their teeth fixed for months or even years and thus suffers pain pays a high price for the procedure. And sometimes the very fact of being unable to finish what has happened for a long time is very stressful.

ChroniquesDuVasteMonde-woman.de: How can the health insurance companies help with treatment errors?

Dr. Britta Konradt: If you are insured with a statutory health insurance company, you can have the treatment process reviewed there via the medical service. An expert report will be prepared and, in many cases, it will be possible to reach an out-of-court settlement. This shortens the procedure significantly - the report is usually available already after six months. Patients can also have their treatment reviewed at the mediation offices set up by the medical associations. The doctor comments on the procedure and a reviewer reviews the treatment. Thereafter, the arbitration board, in which physicians and lawyers sit, advises on the case. Such a procedure lasts on average twelve to 18 months.

ChroniquesDuVasteMonde-woman.de: Your personal tip?

Dr. Britta Konradt: If you feel you have been mistreated, you should do something. This step frees you from the feeling of being dependent and delivered. He makes patients a responsible partner of the doctor and his partner. Doctor and patient have a common concern, they want to cure the disease, the patient from his complaints or at least alleviate. Only together they can do it. If someone makes a mistake on this path, you have to talk about it and compensate for the damage. You must not pretend that nothing had happened.

Good to know

More information about the patients rights law under www.bmg.bund.de/praevention/patientenrechte/behandlungsfehler.html. Patient advice is offered by many consumer advice centers. Council is also the Independent Patient Counseling Germany (UPD) Tel. 08 00/011 77 22 (Mon. to Fri 10 to 18 clock, Thu to 20 clock) and www.unabhaengigepatientenberatung.de ; The UPD itself may not represent patients in the legal profession, but it can mediate lawyers - in disputes of more than 5000 € is at the court lawyer. Information and addresses that help in the event of damage are provided by the Aktionsbündnis Patientensicherheit e.V. www.aktionsbuendnis-patientensicherheit.de .

More info in Britta Konradts book A plea for self-confident patients and human medicine "(256 pp., 19.99 euros, Southwest 2012)