A German Response to Malpractice Lawsuits

Today I met with the Expert Committee for Medical Malpractice Claims, also known as the Gutachterkommission, which offers an alternative to lawsuits for patients who believe they have been harmed by a physician.

The formation of the Committee was largely a response to escalating and costly malpractice claims in the 1970s.  Insurance companies and the Medical Association of North Rhine, which provides professional representation for the approximately 56,500 doctors in North Rhine (a part of the German federal state North Rhine-Westphalia) decided to create the Committee, which is composed of independent doctors and jurists.

The people I spoke with were the Chairman of the Committee, Dr. H.L. Laum, the Chief Executive, Dr. Friedrich Kienzle, and the Office Manager, Mr. Ulrich Smentkowski.   They all stressed that the goal of the Committee was to, as best they could, arrive at the truth of what happened when malpractice is alleged, without regard to the financial repercussions of their findings.

In short, when a patient believes he/she has been harmed, they can initiate a proceeding with the Committee.  The Committee will review the patient's statement and the doctor's records, as well as interview other doctors who treated the patient (if applicable).   At the end of the process, which averages 12 months, the Committee will deliver a non-binding opinion.

A patient is not obligated to use the Committee and retains the right to initiate a lawsuit after it issues its opinion.  The Committee members I spoke with were very proud that approximately 90% of its opinions resolved the matter (on average, the Committee has found that malpractice occurred in about a third of its proceedings; that number has been fairly consistent over a number of years).  They also stated that, of those cases where a patient did choose to pursue a lawsuit, the court affirmed the Committee's findings 98% of the time.

I asked why there was no patient representation on the Committee.  Dr. Laum said the Committee believes that such representation would not be helpful because the lay person would lack the medical and juridical knowledge to contribute to the process in a meaningful way.  Nevertheless, another Expert Committee formed in a different German state recently added patient representation to its membership.

In all, the conversation was a very interesting look into how another major Western country has tried to deal with the contentious issue of medical malpractice and the lawsuits that can result.  No doubt this arrangement would be open to a wide range of criticisms in the United States. I could easily see some of my attorney friends question the impartiality of a group whose membership is largely drawn from the same profession and who, at least in America, have often demonstrated a reticence to criticize their colleagues. One might also ask to what extent patients felt the Committee was their only real option.  The cost to the patient for a proceeding before the Committee is paid by insurance, with the rest of the cost covered by the dues the physicians pay to the Medical Association.  But if you choose to sue, you must find - and pay out of pocket - for a lawyer.  And there is the potential question of whether this process allows a physician to keep his/her license when circumstances dictate a suspension or loss of license.

Still, it seems to me to be a step in the right direction, one that starts to put more weight on fact finding than fault finding.

Admittedly, I don't have a great deal of knowledge in this area.  Post Fellowship, I plan to examine whether such a system has been considered or in some form initiated in the U.S.  Perhaps it could bridge a compromise between those who believe malpractice lawsuits serve principally to increase insurance costs that then deter doctors from practicing, and those who think punitive damages are a just punishment for medical errors.