The General Foundation of Compensation
Medical malpractice claims rest on the general rules of compensation for harm: a person who, through an unlawful intentional or negligent act, causes damage to another person is obliged to compensate it. This norm is the foundation of delictual liability — what matters is the unlawfulness of the act, fault in the form of intent or negligence, and the existence of harm, and it is on establishing these elements that the success of a claim depends. Intent and negligence are the two forms of fault: in the first, the actor aims at the harm or consciously admits its occurrence; in the second, the actor fails to exercise the necessary care without wishing the result. Medical disputes concern almost exclusively the second form, which is why the fate of a case depends on proving the measure of care that was to be expected in the particular situation.
In the medical context this is a particularly sensitive field: a patient entrusts health, and life itself, to a doctor and an institution, and when treatment does not produce the expected result, the question arises whether this was an ordinary medical risk or an unlawful negligent act. The law answers this question through the general foundations, and the assessment of each case turns on its particular facts.
Harm Caused by a Medical Institution
Harm caused to a person's health during treatment in a medical institution — including the result of a surgical operation or an incorrect diagnosis and other cases — is compensated on general grounds. There is thus no separate, special liability regime for the medical sphere: a claim is anchored in the same delictual norms that apply in other compensation cases.
The possibility of excluding fault is especially significant: the person who caused the harm is released from liability if that person proves that no fault can be attributed to the occurrence of the harm. In practice this means that the pivotal issue in the dispute is the assessment of culpability — whether the medical professional acted with the care that was to be expected — and it is expert and investigative evidence that serves this assessment. Medical documentation — the anamnesis, records, the diagnosis and the description of the interventions performed — supplies the raw material of that assessment, because it reflects what information the physician had when deciding and how the conduct corresponded to existing medical knowledge. Preserving one's own medical records and obtaining them in full before initiating a dispute is therefore of practical importance for every patient.