Zeitschrift fur arztliche Fortbildung最新文献

The procedures of the arbitration committee of north Germany for medical liability claims are discussed. This procedure is set into relation to that at court. Due to the continuously maintained communication between lawyers and physicians, which does not occur in a comparable manner in court, the choice to proceed at a arbitration committee and an expert board is seen as more useful and pertinent than at court. This is specifically explained.

The difference of expert assessments is mainly due to individual views but may be caused by other factors from the medical part. Some assessments sound different for the non-medical listener without really being different-at least from the approach. Additionally, the language of expert witnesses are quite different, plausible phrasing goes down well. The kind of the expert assessment or diversity of clients does not influence essentially the frequency of conflicts.

The expert testimony in medical malpractice suits is being criticized until today. The most important objection: The medical experts do not obey their duty to be impartial; they are reluctant to testify against their colleagues regardless of the merits of the plaintiffs' case. But owing to ignorance they often violate further duties they have to comply with as experts, too. The medical profession in the past neglected the instruction-of physicians, who act as experts in malpractice cases. But judges are also responsible for the situation: Not in all cases they do pay enough attention to the selection, instruction and questioning of the medical expert. Many mistakes made in the field of expert testimony meanwhile are recognized and eliminated. Nevertheless seminars for the further instruction of physicians and lawyers are urgently necessary in order to improve the medical expert testimony.

Dealing with a medical expert assessment requires experience and perseverance of the lawyer. Exact knowledge about the expert opinion itself and the procedural options is of greatest importance due to the decisive impact of the medical expert assessment on the outcome of the lawsuit. The lawyer has to consider at any time of the process whether he can initiate an expert assessment, whether he has to evaluate, criticize or question obtained expert assessments, whether he has to challenge the expert or possibly has to introduce another expert into the lawsuit. The expert witness has to have professional knowledge and the lawyer as well as the court have to absorb this knowledge and use it accordingly.

Medical lability actions do rarely without expert assessment. The basic rule of free evidence recognition applies for the evaluation of conflicting expert assessments which forces the judge to examine closely. It is reported about formal mistakes of an expert assessment and the appropriate handling of different expert assessments.

The demands on a medical witness are discussed. Physicians have to learn to deal with the legal conditions of their profession but lawyers have to be ready to understand the circumstances of the medical activity. Since 1975, independent medical bodies in the form of arbitration committees and expert boards have been founded in the Federal Republic of Germany. This extended the field of action for medical experts. However, a definition of the term "expert" is missing. There are rules for the continuing medical training by the German societies of physicians which should guide the courts.

The accused, the parties and the witnesses have different far-reaching duties of cooperation in the different proceedings. This will be investigated in the following paper. The most differentiated regulations can be found in criminal proceedings. The principle of reasonableness forms a limit but is difficult to put in concrete terms.

In the area of medical professional blunder, the medical expert witness is the one participant in a trial whose statement is practically decisive for the court or the prosecutor. Legally, the responsibility remains naturally in the legal hand as the expert witness is only the assistant of the judge. The most important demands on the expert witness are strict objectiveness including towards the colleague, no independent inquiries or interrogations, comprehensive processing of the expert assessment, readiness to revise a written expert assessment according to better knowledge or new facts, independence from the client, no legal comments, clarity of language and intellectual honesty.

In view of the wide range of liability claims, expert medical reports constitute part of the basis of the work of liability insurers. However, the very different qualifications of experts often present the so-called "corporate physician" with great problems, since some expert reports are hardly acceptable, as the author discovered during many years of study of a large number of liability files. In addition, the most striking and frequently occurring criteria are discussed.

The constitutional position of the judge and the medical expert witness during a lawsuit is explained. From this, the demands on a judicial expert witness for the preparation of his expert assessment are derived and the judge's function in the appointment of the expert witness is explained. Additionally, criteria, duties, and rules are worked out, which should be followed by the judge during assessment of the medical expert testimony.