Das Spannungsfeld zwischen der Aufklärungspflicht des Chirurgen über Diagnose, Prognose, Operation, Komplikationen, zeitlichen Ablauf, alternative Methoden und dem Selbstbestimmungsrecht des Patienten

Abstract

The surgeon's duty to inform patients determines the indication to a therapeutic and/ or diagnostic procedure. Despite ongoing information made available by the professional associations, the complaints against surgeons providing treatment are on the increase. Only careful health education information with records kept of the course of treatment adopted will safeguard the doctor in charge from patients' claims for damages. Case law demands that the doctor put the patient in a position to understand what is happening to him or her and for him or her to be able to make a decision freely. The patient's compliance after being provided with health education information makes the corpus delicti of bodily harm void. A special form is the matter of fact of "transfer negligence", when the doctor and/ or the hospital is aware, prior to execution of the treatment, that treatment is not possible lege artis. What continues to be applicable to health education information is that the more urgent the operation, the less information is indicated, so that in emergencies such operation can be completely done without. Apart from general risks, such as wound infection and/or the danger of thrombosis, information must also be provided about special risks and the course of any follow-up treatment. Legal practice shows that simply handing over forms is not sufficient. The patient may forgo treatment. Aborting an operation for purposes of providing health information is balancing between the patient's interests in immediate execution of the indicated measure, on the one hand, and the right of self-determination on the other. Should the operation be able to be aborted without any serious consequences for the patient, then it is to be thus done.What does principally apply in civil litigation is the rule of the burden of proof.