Last week, I met with Prof. Dr. Hermann Liebermeister to discuss Germany’s medical arbitration boards (Schlichtungsstellen). The state medical associations organize the Schlichtungsstellen to provide patients and providers with an out-of-court option to resolve medical malpractice claims. The process is voluntary and non-binding.
Dr. Leibermeister practiced internal medicine for over 50 years, treating approximately 37,000 thyroid patients alone. He has worked in both the United States and Germany. He served as an expert consultant for Saarland’s Schichtungsstelle for more than 20 years.
Here are some of the highlights from our discussion:
What are the advantages of the Schlichtungsstellen?
The three main advantages are: (1) the case facts don’t go into the media, (2) the process doesn’t cost money, and (3) they work quite a bit faster than the courts.
One criticism I have heard about the Schlichtungsstellen is that, because medical associations run them, the experts are biased in favor of the doctors. How do you respond to this criticism?
That’s just not true. The president of the Schlichtungsstelle is a judge who ensures unbiased decisions. In my state, Saarland, our president was a high court judge with expertise in medical malpractice cases. I also point out that Schlichtungsstellen decisions are held up in court in more than 90% of the cases.
How often do the Schlichtungsstellen find that an error occurred?
The Schlichtungsstellen confirm errors in about 1/3 of the cases. Currently, this number is around 1/4, but it remains consistent throughout all Schlichtungsstellen in Germany.
Other than the judge, who else serves on the Schlichtungsstellen?
In addition to the judge, there is a special expert, depending on the medical specialty involved in the case, and a permanent medical consulate, which was my position. After the special expert gives an opinion, the judge makes a legal evaluation and drafts a proposed judgment. The medical consultant is available to consult with the judge during this process at any time and reviews and signs off on the judgment at the end of the process.
How are the special experts selected?
Each Schlichtungsstelle has a pool of experts from which the president (a judge) chooses depending on the required specialty. In general, the judge is able to draw from this pool, however in smaller states, where there are only a couple of experts in a specialized field, they choose experts from another state to avoid having competitors in the state give opinions about one another.
In your experience, do any medical experts in Germany develop a reputation for being plaintiff or defense friendly?
I think that they are pretty balanced. To my astonishment, I have rarely seen experts who gave me the impression that their opinions were one-sided.
Does the Schlichtungsstelle in Saarland ever meet in person to discuss the case or is everything handled by paper and email?
Generally, everything is done by paper, but they meet in about 1 of 50 cases for in-person discussion.
Are attorneys for either side involved during the Schlichtungsstelle process?
In some states in the U.S., and particularly in my state, Louisiana, judges are elected and political influences can lead to biased decisions by judges. Are there any concerns about judges’ bias in the Schlichtungsstellen?
Judges in Germany are not elected. In fact, not any lawyer can become a judge. In order to serve as a judge, one must have a very high score on their exam. I have known judges who are very opinionated in personal conversations, but remain completely neutral in Schlichtungsstelle cases.
How much are medical experts paid for their opinions ?
Very little, around 500 euro.
What does the special medical expert review before rendering an opinion?
They look at the patient file, including objective test results, lab results, and nurses’ notes. Although the nurses complain that they have to write so much, their notes are really important in these cases. Another important thing is that in microsurgery, you have a film running and you can see the procedure, which helps very much to decide whether an error occurred. Very rarely, in about every 10th case, the expert asks to examine the patient.
What legal issues do the Schlichtungsstellen decide?
The Schlichtungsstellen only decide if an error occurred and if the error caused damages. The Schlichtungsstellen can also decide that a patient suffered for a certain period time because of an error. In every tenth case they make a proposal for damages, but they don’t know the end effect, because the insurance company handles the negotiations.
What is the average award amount recommended by the Schlichtungsstellen?
When we make an award recommendation, it usually ranges from 5,000 – 20,000 euro. The highest award would be approximately 4 million euro for a permanent disability in a birth injury case. This amount includes everything, including future medical care and pain and suffering. Pain and suffering awards in Germany are not very high.
Do the Schlichtungsstellen consider burden of proof shifting?
Yes, this is very important. In most cases, if the burden of proof shifts, the doctor has already lost. This usually happens in very complicated cases. In many cases, I looked at the records and could not see how an error could be proven under the traditional burden of proof rules, but when the judge applied the burden shifting rules, it helped solved this very complicated issue, and I felt comfortable signing the judgment under that legal reasoning.
Does the Schlichtungsstellen consider cases of organizational liability against the hospital?
No, we only hear cases involving individual doctors. This is a big problem in Germany. Our law system in Germany is fixed on personal faults, so you cannot attack the organization. I had a case in which the error was not the fault of the young doctor involved, but of the administration that put the doctor in a situation that he could not control.
Did you gain some insight into why patients file complaints with the Schlichtungsstellen?
There are three main reasons people file complaints: (1) the result is unexpected and the doctor made promises that he couldn’t keep; (2) a (usually young) doctor tells the patient that another doctor made a mistake; and (3) the doctor isn’t able to effectively explain to a patient what happened. Patients often tell us that the doctor explained what happened, but they didn’t understand what the doctor said. In many of these cases, patients wrote the Schlichtungsstelle that they didn’t want the doctor to get punished, but they wanted to know what really happened. Because of this, the Schlichtungsstellen opinions must be written down in a form that the patient can understand. In Germany, there is no need to file a lawsuit to pay for medical care.
Were there any recurring conditions or facts that led to errors?
One problem is that there are many foreign doctors. I always had two or three in my department, because I was well-treated when I practiced in Wisconsin and I wanted to repay a little bit of that. The problem is that while they are very good doctors, they are not experts in German, and they dictate an operation report and the supervisor signs it without looking at the details. Then we must make our decision based upon the report, so if the doctor made a mistake in writing the report, this can be a very difficult problem for the hospital and for the doctors. I have talked to judges about this and they had no good solution to this problem. This also touches a little on the responsibility of the administration and organizational liability.
On Germany’s critical incident report system (CIRS):
I part of an organization that drafted medical guidelines. We heard testimony from a doctor who was also a pilot about the use of anonymous error reporting in the aviation industry. He told us about a fighter pilot who was flying over the North Sea at night when the motor stopped. It was dark and there were two switches next to one another in the cockpit – one to restart the motor and one to eject the pilot. The pilot said a prayer and pulled a switch and it happened to be the correct one and the motor restarted. After the flight he made an error report and the switches were changed to avoid this problem in the future. In aviation, near-miss incidents like this account for 99% of the errors.
One example of a CIRS success story in the medical industry is that the locks for oxygen and anesthetic were redesigned after a report noting that they were exactly the same so that the hoses could be mixed up and connected to the wrong outlet.
Is there any danger of information in CIRS being used by the patient in a medical malpractice complaint?
No. Germany has worked pretty hard to keep this system anonymous, so that the focus is on the facts and not the guilt. The big hindrance in the beginning of CIRS was to make sure that no lawyer could enter into these systems, and I think they are convinced that they have arrived at this situation.
What about cases of organizational liability in which the plaintiff is trying to show a pattern of errors that were reported but ignored by the hospital?
If the information is only in CIRS, you won’t get it. You can get the information from the person who entered the report, but you cannot get the information from CIRS.
On funds for hardship cases:
Sometimes you have a situation where you have a patient and something went wrong with their treatment, but it is not the doctor’s fault. I hated to sign these judgments against the patient. In Switzerland and Austria, for every day a patient stays in the hospital, a few cents are collected in funds for hardship cases. The highest amount of compensation from these funds is about 10,000 euro, which is to compensate for pain and suffering. In these cases, the patient is very glad that someone recognizes that they are in a deplorable situation. This is a big problem that should be solved in Germany with funds for hardship cases (Härtefallfonds), because we see that it works in Switzerland and Austria.
Some doctors in the U.S. complain that healthcare laws require them to do too much paperwork and decrease the time they spend caring for patients. Is that a complaint in Germany too?
Yes, but this is not a new problem. Today, doctors and nurses spend around 40% of their time on paperwork. More and more doctors are looking at a computer rather than the face of patient. This problem is independent of specific healthcare laws, but one should always look to see if it is really necessary to introduce more documentation requirements. Another way to ease the burden is to provide doctors and nurses with secretaries to assist with the documentation requirements.