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  • Title: [Medical care as physical injury from the viewpoint of the law and jurisdiction].
    Author: Gropp W.
    Journal: Z Arztl Fortbild Qualitatssich; 1998 Oct; 92(8-9):536-42. PubMed ID: 9885155.
    Abstract:
    The practice of criminal courts in Germany classifies medical treatment as personal injury, even if treatment is successful. Exemption from punishment needs a justification by the consent of the patient (approach of consent on the level of justification). Effectiveness of consent needs information of the patient on all relevant points of treatment (informed consent). Without an effective consent, physician is responsible for personal injury. In case of assuming the patient's consent, there is a responsibility for negligence. The results of this practice are inadequate in two ways: 1. The physician is classified like a common knifer. 2. An insufficient information of the patient is followed by a charge of personal injury even when the treatment was successful although only self-determination is violated. Legal science tries to solve point 1 by classification of the informed consent not as a question of justification but as a part of the description of the criminal offence together with the indication of the medical treatment and the performance lege artis (approach of consent as a part of the description of the criminal offence). Point 2 can only be brought to a proper solution, if the lege artis-treatment is excluded from the description of personal injury. For cases of medical treatment without informed consent, jurisdiction should create a new definition of an "unauthorized medical treatment" by the legislator.
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