[Do clinical guidelines and economic restrictions on health care affect the criminal liability of health care professionals?].
Criminal liability in connection with clinical guidelines relates to several different aspects: (1) It refers to the guideline authors' liability under criminal law in the case of faulty guidelines. (2) Guidelines do not constitute legally binding rules. They can only contribute to determining the standard for medical specialists. (3) There can and must not be any reversal in the burden of proof with criminal proceedings. (4) In case of a deviation from guidelines and a related breach of duty, the subjective aspect of negligence (i.e. the recognizability of danger) can often be inferred from the knowledge of the respective guideline that we can reasonably expect of the physician. (5) No physician who has adhered to the guidelines can regularly be accused of (subjective) negligence. (6) Problems may be encountered in cases where the topic in question has not been covered, but only peripherally touched upon by guidelines. For the sake of uniformity in our legal system, the individual physician must not be held criminally responsible for the lack of economic means. Possible solutions include: (1) relating the standard to the practically instead of the theoretically feasible, (2) investigating to what extent criminal liability may be limited by acceptability and possibility. The complete refusal to provide medical care under inadequate conditions may increase the endangerment of legally protected rights and therefore be unacceptable. Attempts to improve structures towards the standard may be regarded as meeting the requirements under criminal law.
Erlinger
Rainer
R
Ulsenheimer Friederich Rechtsanwälte, Maximiliansplatz 12,80333 München. erlinger@uls-frie.de
D003365:Costs and Cost Analysis; D006282:Health Personnel / Q000331:legislation & jurisprudence* / Q000592:standards; D006801:Humans; D008318:Malpractice / Q000331:legislation & jurisprudence*; D017410:Practice Guidelines as Topic; D012941:Social Responsibility