Featured image: Photo by Olu Eletu on Unsplash
As I started to explore the role of expert witnesses in medical malpractice lawsuits in Germany, I knew that I needed the perspective of a medical malpractice attorney. Berlin attorney, Jana Hassel, proved me right. After many interviews with policymakers on various levels of the healthcare industry, it was refreshing to sit down with an attorney who spends her days handling the real cases of real patients to discuss the practical implications of laws that govern medical malpractice in Germany. It was also fun to share some litigation war stories!
I’ve always felt that there was too much of a disconnect between what actually happens in the courtroom and the ideas that researchers, policy-makers, and legislators have when they shape the legal system. This feeling was reinforced after my interview with Jana Hassel. It became clear that her experience with medical malpractice in Germany was very different than that of the policymakers and risk managers I spoke with. This is not to suggest that one group of people has better information or a better perspective than the other, and I admit that what happens on a policy level takes time to trickle down to the very slow moving legal system (this seems to be a universal trait of legal systems), but I do think that the experience and perspective of legal practitioners is an invaluable resource for healthcare leaders trying to create a just and safe healthcare culture, and the following excerpts from my interview with Ms. Hassel demonstrate why:
How do parties in medical malpractice lawsuits select experts to evaluate the case prior to the lawsuit?
We have many different possibilities in Germany. Sometimes, clients come to us and have already received a report from the medical service of their health insurance company. The statutory health insurers in Germany help their insureds get an expert medical report in cases of suspected medical malpractice. These experts vary in quality, some are very good and some are very bad; however, since they are free for patients, it is an easy place to start to get some idea of the case.
If the patient has money, the lawyer can hire a private expert. This is a good option when there is no expert opinion from the insurer or when that expert report is not so good. Unfortunately, these patients often don’t have money, they are sick, they have a lot at risk, and, especially if their medical condition is bad and there is a lot of damage, then they are also so financially damaged that they most of them cannot pay for an expert opinion.
Then there is the option of getting an expert opinion from the Schlichtungstellen, the arbitration bodies of the medical associations. This used to be a very good option for the patient, because if the doctors were found to have made a mistake, then the insurance usually accepted it. Today that is no longer the case, and any advantage for the patient is lost, because even if the Schlinchtungstelle finds that the doctor made a mistake, the insurance may not accept the decision and pay for the damages, so the process is just a waste of time for the patient. Also, the Schlichtungstellen do not investigate whether there was an error in the informed consent, so that is a huge area that cannot be determined by the Schichtungstellen.
Can patients have an attorney during the preliminary expert opinion process and does it make a difference?
Yes, sometimes the patient is represented by an attorney during this process. Attorneys can make a difference, because they can help prepare the facts submitted to the experts. For example they can obtain the medical records and help prepare a chronology of the patient’s treatment, so the experts do not have to take extra effort to obtain this information.
How much do private experts cost?
It can be very different, but it usually ranges between 600 euro and 3500 euro depending on the size and complexity of the client’s medical records.
Do some patients have legal insurance to cover the costs of malpractice litigation?
Yes, some patients do, not all, but a few. However, the legal insurance does not pay for a private medical expert opinion prior to the lawsuit. There are some situations where the insurers should consider covering the cost of expert reports prior to litigation, because it would be a win-win situation for them and for the patient. For example, in a situation where several patients file simultaneous claims against a hospital after getting an infection, a pre-litigation expert report that considers all these cases together could show a pattern of negligence that a single patient could not prove alone.
Can a party’s private expert testify in court?
The only expert that testifies in court is the one retained by the court. You can take your private expert to court to assist with the proceedings and questioning, but the patient would have to pay extra for the expert’s time in court, and they usually just don’t have the money.
How much does the court pay for its expert?
Usually between 2500 and 4500 euro per case.
Can the lawyers question the court’s expert?
Yes, but the judge is the central figure and he determines quite a lot in the process. He is usually not so interested in what the lawyers have to say. Also, the judge asks the first questions and if the judge’s questions are conclusory, then the lawyers have no way to challenge what they expert says. For example, it makes a huge difference if the judge asks, “Was there a mistake?” instead of, “What were the options in this case, and why was this course of treatment decided?”
I think the process of questioning witnesses is much better in America. The separation of the judge from the case where the judge ensures that things run smoothly procedurally, but does not decide guilt or innocence, is a better process. I spent two and a half months in England watching legal proceedings, and I was very enthusiastic about the judges’ roles, because they only interfered with the process to make sure things were procedurally fair, and I thought that was great.
Do the parties have any input into the selection of the court’s expert?
The judge alone chooses the court expert. Only when the lawyers express a concern for bias and can prove that bias, do they have a right to challenge the court’s selected expert. But, there are no rules for determining when the expert is biased. It just depends on the sensibility of the judge and getting another expert usually results in more work for the lawyer more expense for the client.
Do you think the judges are able to make fair decisions?
There are some judges who do a really good job. They take an intense look at the case and the treatment documents and are very well prepared, but that is not the rule. Generally, they have a lot of cases and they are under pressure to move the cases through the court quickly, so they don’t have much time to spend on each file. They also need expert knowledge and that is difficult because only the court expert has the necessary expertise, and the judge doesn’t have them on hand when he is working on a particular file and has questions.
Does the court expert have to support his opinions with studies and medical literature?
Actually, the expert should bring studies and literature with him to court. For most cases though, there are not reliable medical studies that address the specific treatment at issue in the case. There are only a few studies comparing what happens when a particular treatment method is chosen compared to what happens after treatment method A, method B, placebo, etc. Ultimately, the expert has a lot of freedom when forming his opinion. The court never rejects expert opinions because the medical literature is missing or insufficient.
Are there any legal or industry standards that govern medical expert testimony or opinions?
Technically, the expert should consult the medical guidelines, but there is no training for how to apply the guidelines, so each expert acts independently in how they use the guidelines and there is no oversight. There are also no industry sanctions or repercussions for medical experts who give unsupported opinions.
Do you think the judge influences how the court’s expert opinion turns out?
Yes, the process is turned upside down. The judge has an idea about what decision he wants, and if the expert’s opinion can support that outcome, then the judge will continue to hire him.
Is it possible to bring a legal action for organizational negligence?
Theoretically, this is possible, but the patients do not have information about organizational negligence and the doctors are not willing to speak about it. It is possible for the doctors to just say, “I didn’t have enough staff” or “we didn’t have enough resources,” but they won’t do it. Lawyers represent patients, but for the doctors, it’s the other way around. Usually, the doctors are represented by attorneys for the hospital’s insurance company, and the insurance company wants the entire lawsuit to go away, so it’s not in their interest for the doctors to speak about organizational negligence. So practically, issues like inadequate staffing and other organizational failures do not come into court, because the patients just don’t have the information. It is important for doctors to start breaking their silence and quit taking responsibility for the negligence of the organization.
From what I understand, Germany does not allow American-style discovery, where the plaintiff can ask for broad categories of documents from the defendant, so I imagine this makes it impossible to prove organizational negligence if the doctor doesn’t provide the information?
Right, we cannot do that at all here. It isn’t possible to request large categories of documents. In order to request a document, we have to prove that the document exists, which is really a huge problem in Germany, because we can’t get to the information. Also, decisions made at the administrative level are not indicated in the patient’s medical file, so for example, if the administration puts pressure on the providers to perform a certain kind of treatment or to administer more and more medical treatments, that’s not information that is available to us.
On the other hand, it seems to me that protecting the information in Germany’s critical incident reporting systems, so the hospitals can learn from near-miss errors is important. How do you think we can balance this kind of confidentiality with transparency?
I think it is important that these mistakes are avoided, so this protection for CIRS data is very very very very very very important. No question. But, I also believe that you learn more from actual injuries, because it is more memorable. In that case, it does not help anybody to absolve the doctor of liability or destroy the evidence. I think the organization plays a role there. It should not be so easy to just add to or change the medical records. With electronic medical records becoming standard, this is a huge problem.
Do you have any suggestions for improving the system to prevent and/or fairly resolve claims of medical malpractice?
In terms of litigating these claims, it would be much better if we had a system in medical malpractice similar to what we have in labor law disputes. In labor law, each side selects an expert and the experts sit as judges. They know the right questions to ask, and I think this makes the process fairer. For example, for medical malpractice, we could have an expert representative for the patient and one for the doctor, and they would engage in a valuable assessment of the case and make a decision.
Also, there needs to be some consequence for when medical documents are falsified. There should be a database, so judges can be aware of when doctors have changed the medical records. I have already had a few cases where it was clear the doctor previously falsified documents, but I have to prove this each time. There are currently no consequences for falsifying medical records. I just had a lawsuit where the opponent entered the patient’s vital signs during the operation before the operation even occurred. Luckily in this case, we could see that the vital signs were entered before the operation, but that isn’t always the case.
Also, for preventing organizational errors, there should be some kind of oversight by a third party. For example, a small team could go to the hospital unannounced to investigate the hospital procedures and cleanliness of the hospital. This way the hospital doesn’t prepare for the inspection and it allows real problems to be detected.
Finally, it makes no sense to me the amount of treatment that patients are receiving in Germany. Because of the way healthcare billing systems are designed, healthcare providers are pressured to provide more, more, more treatment and at a faster, faster, faster pace. And it doesn’t work. The population isn’t any healthier as a result of all this treatment. It only promotes mistakes. If we slow down, the doctors will be under less pressure, the teams will have more time to clean the operating rooms, etc. I had a case where a woman who was going through menopause was subjected to a series of surgeries to fix symptoms that were just standard for menopause. At some point, when it is appropriate, providers need to tell patients that they will get better by staying home in bed or that these symptoms are just normal for your age instead of providing more and more unnecessary medical treatment. This is a real problem in Germany.