[Beginners' operations and medical specialist standards : Avoidance of criminal liability and civil liability]

In all phases, patients are entitled to receive medical treatment according to medical specialist standards. This does not mean that patients necessarily have to be treated by a medical specialist. Operations performed by "beginners", e. g. assistant physicians, are permitted. However, there are increased liability risks, both for the specialist and the assistant physician. Furthermore, there are risks of criminal responsibility for causing bodily harm by negligence or negligent manslaughter.

This article portrays the requirements of civil liability and criminal responsibility concerning beginners' operations on the basis of cases and judgments of the Federal Court and the Higher Regional Courts in Germany. Additionally, the reception of the jurisprudence by the relevant legal literature will be discussed.

Jurisprudence and legal literature categorize breaches of duty of care. Assistant physicians can be subject to contributory negligence liabilities, while specialists can bear liabilities for negligent selection, organization or supervision. Responsible specialist and assistant physicians can protect themselves (and the patient) and avoid legal risks by only performing operations adequate to their educational level or by delegating operations to beginners and ensuring intervention by a specialist by supervision of the operation which is suitable to the assistant physician's level of education.