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- Title
Aktuelle Rechtsfragen des erstinstanzlichen Arzthaftungsprozesses.
- Authors
Nordmeier, Carl Friedrich
- Abstract
The article "Current Legal Issues in First Instance Medical Liability Proceedings" deals with various legal questions related to medical liability proceedings. It discusses the jurisdiction of courts in such cases, particularly the establishment of civil chambers for disputes arising from medical treatments. The possibility of transferring medical liability cases to a single judge is also discussed. The article provides advice to lawyers on how to steer the proceedings in a meaningful direction. The text covers various aspects of first instance medical liability proceedings. It is noted that the dispute in the second instance is subject to a decision by a single judge, which can lead to a longer time commitment. The decision whether to set an earlier initial hearing or initiate a written pre-trial procedure depends on the circumstances of the individual case. The obtaining of an expert opinion can be done by issuing an order for evidence before the oral hearing. The selection of the expert is based on the principle of expertise in the same field, with no consideration given to the expert's institutional affiliation. The submission of treatment records is an important basis for an expert opinion. The article deals with the possibility of submitting documents from pre- and post-treating physicians in the context of a medical liability proceeding. It is stated that it is usually unproblematic to provide the expert with the treatment records of the disputed treatment. However, it can be more difficult to obtain records from pre- or post-treating physicians that are still in their possession. The question is discussed whether the patient has a procedural claim that the court must obtain the documents. The practice of the Frankfurt Medical Liability Chambers provides that the parties are initially required to submit the treatment records. The presence of the parties and their legal representatives during an examination by the expert is also discussed. It is emphasized that a balancing of interests is necessary to decide whether the presence of the treating physician or his legal representative during the examination is reasonable. The text contains references to various court decisions, commentaries, and draft laws in the field of medical liability law. It is noted that the presence of the treating physician and his legal representative during the examination of injuries by an expert in the presence of other parties to the proceedings should generally be allowed. In addition, objections to expert opinions and the importance of specific objections and questions for the conduct of the proceedings are explained. The text also deals with medical liability proceedings with a foreign connection and the question of process cost security. Finally, the application of foreign law in inherited claims in medical liability proceedings is discussed. The present text deals with various legal aspects related to medical liability proceedings. Reference is made to the application of the Brussels I Regulation and the Code of Civil Procedure, as well as judgments of the Regional Court of Kassel and the Federal Court of Justice. Furthermore, the succession by reason of death in the case of Iranian and Turkish nationals is discussed. It is emphasized that claims arising from a treatment contract or tort claims are considered movable assets and are inherited according to the law of nationality. The text mentions
- Subjects
PRE-trial procedure; LEGAL liability; MEDICAL laws; CIVIL procedure; LEGAL judgments
- Publication
GesR: Gesundheitsrecht, 2024, Vol 23, Issue 3, p137
- ISSN
1610-1197
- Publication type
Article
- DOI
10.9785/gesr-2024-230303