title: [Withholding medical care as a physical injury--manslaughter and withdrawal of treatment].
abstract: Withholding therapy may cause a charge of manslaughter and the intended withdrawal of therapy may result in proceedings because of second-degree murder, requested homicide and omission of help, respectively. According to the criminal law, negligence of the duty to help does not require a guarantor position of the physician but the intent for punishableness. Otherwise, the physician is liable for negligence only if he holds a guarantor position for the protection of the patient's life and health. The facts of manslaughter require the violation of medical care which is not equal to the violation of common or mostly acknowledged rules of medical science. Another requirement for liability is causality. Thus, is has to be proven without doubt that the patient's death would have been avoided if the omitted therapy had been applied. The legal requirements on the principle of causality are high. Therefore, negligence can be proven in many cases but the proof of causality does not succeed and the charges have to be dropped. In such a case, it is totally wrong to attempt a charge of omission of help since the criminal law requires intent and is not a collector for neglected medical procedures.
authors.affiliation: Rechtsanwaltsbüro Weinberger, Sottung und Kollegen, München. sozietaet@ra-weinberger.de
authors.forename: K
authors.initials: K
authors.lastname: Ulsenheimer
mesh_terms: D005066:Euthanasia, Passive / Q000331:legislation & jurisprudence*; D005858:Germany; D006708:Homicide / Q000331:legislation & jurisprudence*; D006801:Humans; D008318:Malpractice / Q000331:legislation & jurisprudence*; D016079:Refusal to Treat / Q000331:legislation & jurisprudence*