[Risk as a circumstance which excludes unlawfulness]

Scientific and technical development in all branches, and thus also in the health services, calls for legal arrangements of permissible risk as a factor ruling out unlawful action. The prerequisite of the development of responsibility in the health services is not only infringement of duties, i.e. action non lege artis, but also the fact that it occurred through the fault of the worker. Even in correct provision of health care health damage may occur caused by a fault or incorrect action of the patient, by the action of his environment or as a result of a particular physical condition of the damaged subject. Established medical procedures must be considered an important directive. If, however, a doctor in a certain case, based on convincing and well considered reasons, deems it necessary to deviate from practice which he considers outdated by the present state of science or with regard to the actual position, it may not be stated that his action is unlawful.