In the field of medical law, we advise patients and physicians on medical malpractice cases and we represent them in the enforcement and/or defense of compensation for pain and suffering and/or damage claims.
Medical criminal law
Criminal proceedings in which physicians are accused are increasing. These criminal charges usually result from the close relationship between life and death, which physicians regularly have to decide on.
Also, there are charges regarding the billing related to medical services, either to the patient or to the accounting centers.
The following criminal charges are made in practice:
- Negligent homicide or negligent physical injury, §§ 222, 229 StGB
- Manslaughter, § 212 StGB
- Malicious injury, § 223 StGB
- Medical euthanasia
- Failure to render assistance to a person in danger, § 323c StGB
- Accounting fraud, § 263 StGB
- Fraudulent breach of trust, § 266 StGB
- Breach of Doctor-Patient Confidentiality §§ 203, 204 StGB
Frequently, criminal charges against physicians do not relate to the specific treatment, but to the subsequent accounting. In recent years, the public prosecutor's office has increasingly focused on investigating suspected cases that may constitute accounting fraud under § 263 of the German penal code (StGB). This primarily involves the accounting of health insurances for services that were never actually provided. However, it is often more than unclear whether chargeable fraud has actually been committed in these cases.
In legal practice, numerous legal problems and difficult questions are hidden in the area of accounting fraud. It is often questionable who has been deceived in the confusing relationships between patient, physician, health insurance and, if applicable, pharmacy, and who has subsequently made a disposal of assets. In the case of an accounting fraud charge, one focus of the legal work often lies in the aspect of whether the accused can even be charged with fraudulent intention due to the complexity of the accounting scheme itself. Here, it depends on the specific constellation of the respective individual case. In an initial legal consultation, these questions can be discussed on the basis of the specific charge and can be often already assessed preliminarily.
Fraud is subject to particularly severe penalty due to its relevance and its high level of injustice. According to the law, a prison sentence of up to five years or a fine may be imposed.
In particularly severe cases, namely if the fraud is committed on a commercial basis, a prison sentence of up to 10 years may even be imposed.
In addition to the criminal consequences, there is also the threat of a withdrawal of the health insurance admission, i.e. the loss of the medical license and a professional ban.
Absence of consent:
As a general rule, a physician's medical treatment constitutes an intentional physical injury and is justified only by the patient's consent. Therefore it is basically necessary that the patient is informed at an early stage about all risks and also about alternative treatments and that he then consents to the treatment accordingly. The consent does not always have to be explicit. In individual cases, it may also be replaced by presumed consent, e.g. if the patient is unconscious. In this case, it is only necessary to confirm whether the patient would presumably have consented if he had been able to do so. In most cases, the answer is "yes." In the end, a sick or injured patient wants to be saved.
In the case of an incorrect information, the question also arises as to whether the patient would have consented to the treatment even if he had known about all the risks or alternative treatment methods (hypothetical consent).
The requirements for a correct consent are very high. Generally, the lower the pathological significance of a patient, the higher the requirements for consent. If you are accused of negligent physical injury (§ 229 StGB) or negligent homicide (§ 222 StGB), we will analyze and review the situation in detail preemptively.
If you are accused of a crime, please feel free to contact us immediately.