[Medical care as physical injury from the viewpoint of the surgeon]

The current criminal law regarding medical malpractice is based on the over 100 years old principle of personal injury, as defined in Section 223 of the criminal code. Attempts to revise this legislation have failed repeatedly in the past. The surgeon's duty of disclosure has gained pivotal importance, often being a handicap for differential surgical treatment. The lack of a specific criminal law regarding medical malpractice in combination with the theoretical construct of a surgical intervention as an authorized personal injury is disadvantageous for both patient and surgeon, since the surgeon is led to deny malpractice and therefore compensation by the liability insurance is not guaranteed. The threat with criminal penal for the surgeon which acted wrong but not gross negligent should be diminished by a definition of a specific criminal law on medical and surgical malpractice.