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Division of labor and medical liability in German law

TEAM – Together everyone achieves more…

… Nowadays, effective work in the context of modern medicine is hardly conceivable without the collaboration of several people.

On the one hand, the necessary specialization of the individual medical disciplines means that in most cases several doctors are involved in the treatment of a single patient. On the other hand, the financial situation in the healthcare system and the ever-increasing shortage of doctors mean that non-medical staff are increasingly being called upon to provide treatment. However, a division of labor also harbors a high risk potential, especially at the interfaces between the individual areas of expertise. Against this background, the question arises as to the extent to which division of labor can take place in the context of medical treatment and how this affects medical liability in the event of possible errors.

These issues of division of labor and medical liability will be discussed in this article in the context of German law.

First of all, it is important to show what types of division of labor exist in modern medicine. Following the case law and literature on medical law, one must distinguish between the horizontal division of labor and the vertical division of labor.

In the horizontal division of labor the treating persons have an equal relationship with each other and are not subject to any instructions. According to the principle of horizontal division of labor, all parties involved can rely on each other to perform the task within their area of competence with due care, as mutual monitoring by the individual specialists would make cooperation considerably more difficult and increase the risks for the patient. In this context, one also speaks of the principle of trust.

Vertical division of labor is present in an activity that is characterized by a superior/subordinate relationship, i.e. when hierarchical structures exist in contrast to the horizontal division of labor.

In order to determine in which areas and in which cases division of labor is permissible, it is necessary to define the boundaries of modern medicine based on the division of labor. While a specific prohibition is not defined by medical malpractice law as a direct limit on the permissibility of the division of labor, limits are set for the division of labor in other ways. These are established on the one hand by the physician’s reservation and on the other hand by liability itself, i.e. if a treatment or information error occurs within the scope of the division of labor or if the division of labor is no longer covered by the patient’s consent, this can lead to liability on behalf of the treating party. Based on the medical treatment relationship, the practitioner is obliged towards the patient to provide treatment “lege artis”, i.e. in accordance with the rules of medical science. The so-called «specialist standard» is therefore owed. The patient is entitled to treatment in accordance with the specialist standard. According to § 630 a II BGB (German Civil Code), this specialist standard means treatment at the level of a fully trained specialist in the respective field. However, the specialist standard does not always require formal recognition as a specialist, but presupposes a certain degree of experience and training progress on the part of the doctor, as would be expected of a specialist. If this standard is not met, this constitutes malpractice. Despite the limitations outlined above, not every medical service must necessarily be performed by doctors. This is not even possible due to the amount of work involved and the resources available, as already explained at the beginning. When answering the question of whether certain services can be delegated, a distinction must be made between the objective and personal ability to delegate.

Furthermore, according to the literature and case law, the ability to delegate depends on the complication density of the respective case. The decisive factor should therefore be the assumed risk of the specific treatment for the patient, which must be determined on a case-by-case basis.

In the first place, it must be examined within the scope of the objective delegation ability whether the service to be delegated is capable of being delegated as such. This is the case, on the one hand, if it is not in the core area of medical activity and if the addressee of the delegation is sufficiently supervised by a specialist.

Despite a number of medical reservations in various laws (e.g. § 1 II HPG, §§ 1 I 1, III ZHG, 24 IfSG, 218 ff. StGB, 2 I KastrG, 7 II TransfG, 13 I BtMG, 48, 49 AMG), there is no clear standard that defines the core area of medical activity. The limit of delegable activities is therefore not based on legal principles, but the law only controls the limit in this respect. Rather, the limit is determined by medicine itself or by the respective specialty. Only the respective expert knows the risk arising from the type and severity of the procedure and the general potential for complications, and only the expert can assess what qualifications are required to carry out the necessary treatment.

As part of the personal delegation capability, it must be determined whether the person intended to carry out the measure is suitable as the addressee of the delegation in terms of their training and skills. The delegation of a service to insufficiently qualified personnel may constitute a treatment error or a breach of organizational duties, just as delegation despite the prohibition of delegation. The knowledge and experience of the addressee of the delegation must be taken into account when determining qualifications.

As already explained above, the treating party owes the patient treatment in accordance with the treatment contract pursuant to § 630 a BGB (German Civil Code) in line with the specialist standard.

On the one hand, a doctor is obliged to recognize where the boundaries of his specialist area lie and which areas he should leave to another specialist. On the other hand, when delegating medical services to non-medical staff, a particularly high degree of care must be taken by the doctor responsible when selecting and supervising them. Liability law therefore sets limits to the division of labor in order to be able to guarantee the specialist standard even within the framework of the division of labor in medicine. This limitation under liability law is made up of the two central grounds for liability under medical malpractice law, treatment and information errors. If a specialist falls short of the standard of care, this constitutes malpractice. In addition, the patient must be informed about the treatment prior to treatment in accordance with § 630e BGB (German Civil Code) in order to safeguard their right to self-determination. If no information is provided, a breach of the duty to inform is possible as a further basis for liability in addition to the treatment error.

In the context of medical liability, it should be emphasized that the treatment relationship between doctor or hospital and patient must be classified on a contractual and tortious level. Depending on the type of contract concluded, the doctor or hospital has assumed the treatment of the patient on the basis of the contract. If a total hospital admission contract is concluded with the patient in the case of inpatient treatment, then in the normal case of the so-called «Kassenpatient» (Patient with statutory health insurance) there is only a contractual obligation between the patient and the hospital operator. This means that only the hospital operator is liable as a contractual partner in accordance with § 280 I BGB (German Civil Code). If, on the other hand, a split or total hospital admission contract with an additional contract with a doctor is concluded, there is a contractual relationship between the patient and the doctor in addition to the contractual relationship with the hospital, which means that the doctor may also be contractually liable.

The scope of liability within tort law liability is much broader. Liability in tort does not presuppose a contractual obligation; rather, it applies to anyone.

Pursuant to §§ 823 I, 831 I, 31 BGB (German Civil Code), the addressee of liability can be the hospital operator as well as the delegating or treating doctor or a non-medical employee. If the hospital operator and doctor or doctor and non-medical staff are liable at the same time, there is joint and several liability in accordance with § 840 BGB (German Civil Code).

Under contract law and tort law, the liability of those acting is determined by the expert position they have assumed. In principle, contractual and tortious patient protection are identical. This is because it has little practical effect that the patient’s contractual partner is also liable for third-party negligence on the part of their assistants, such as medical staff, in accordance with § 278 BGB, but only for their own negligence in tort. This is because own negligence cannot only relate to the primary treatment tasks, but also to the organization, selection, instruction and supervision of his assistants. If the assistant makes a mistake, such fault and the causality for the assistant’s mistake is assumed in accordance with § 831 BGB (German Civil Code), which means that the principal responsible under the contractual relationship is liable for the vicarious agent dependent on instructions.

In the area of horizontal division of labor, the general principle applies that the physicians involved in the treatment are obliged to prevent the dangers and risks of division of labor as far as possible. The collaboration between the anesthesiologist and surgeon is a classic example to illustrate the principles of medical liability in the context of the horizontal division of labor. In the event of an error in the context of horizontal cooperation between surgeon and anesthesiologist, both are generally equally liable due to an organizational error, which is then to be assessed as malpractice/errors in treatment.

With regard to the delegation of medical tasks, outside the core medical area, within the framework of the vertical division of labor, there is agreement that this is only permissible with sufficiently qualified personnel. The delegated measures must be able to be performed by the addressee of the delegation just as well and safely as by a doctor.

The delegation of a medical service to an inadequately qualified treatment person may constitute a treatment error or a breach of organizational duties. Depending on how the contract is structured, the hospital operator and/or the liquidating head physician are generally liable for errors in delegation in the context of inpatient treatment in accordance with §§ 280 I, 31 BGB (German Civil Code). Under tort law, the hospital operator and the delegating doctor may be liable in accordance with §§ 823 I, 831 I, 31 BGB. Non-medical staff are also liable in tort if they carry out the delegated task despite doubts about the correctness of the delegation and do not report their concerns.

The violation of physical integrity that generally occurs in the context of a medical treatment must be justified by the patient’s effective consent. Effective consent can only be given if the patient has previously been informed of the essential circumstances of the treatment in accordance with § 630e I BGB (German Civil Code).

For example liability may arise due to inadequate information about the treatment by non-medical staff or by a doctor who is still undergoing specialist training. Liability for failure to provide information about the actions of non-medical personnel is governed by the same rules as those for medical malpractice, which have already been explained above. In addition, it is questionable how liability for a failure to provide information is to be assessed if the information is not provided by the treating party itself, but is delegated. In principle, the treating party must inform the patient themselves in accordance with § 630e I 1 BGB (German Civil code). However, it is recognized that the clarification can also be carried out by a person who has the necessary training to perform the measure if the standard of care is maintained. It is part of the organizational duties of the hospital operator or the head physician to ensure that the patient is informed correctly.

It is clear from the above that the division of labor is representative of an increasing alienation of the doctor-patient relationship. As shown at the beginning, various factors in the healthcare system now make it impossible to provide successful treatment without a division of labor. However, as necessary and promising as the division of labor may be, it harbors great potential for danger, especially at the interfaces of the individual processes. These dangers must be countered by the physician in charge or the hospital operator with the necessary care in order to do justice to the most important maxim of the doctor-patient relationship, namely the maintenance of specialist standards. For every measure that is to take place in any form of division of labor, it must be carefully examined whether the patient’s claim under § 630 II BGB (German Civil Code) is met.

Together everyone achieves more – but never at the expense of the patient’s physical integrity and self-determination.


By Muriel Hakuba