Differentiation between diagnostic errors and errors in assessment of findings

In medical malpractice allegations the burden of proof is often crucial to the outcome of the proceedings. In principle, the burden of proof is assigned to the complainant (patient) and only in exceptional cases, especially in the presence of a gross error in treatment, is the burden of proof reversed so that the defendant (physician) has to prove that the treatment did not cause injury to the patient. To supply this proof is of course very difficult. In this context a judgment of the Federal Court of Justice (BGH) from December 2010 achieves a special significance which, in conjunction with an earlier BGH ruling in April 2004, provides that this reversed burden of proof applies even for a slight error in assessment of findings but in contrast only for a very serious diagnostic error. The failure to recognize assessment of findings as medically necessary thus represents the consid-erably more medicolegally serious offence of medical misdemeanour. On the other hand, a much larger scale diagnostic error is classified as an ultimately not always avoidable medical error that can occur without negligence. From the perspective of practitioners it is recommended that a diagnosis (at least a tentative diagnosis) should be derived on the basis of the findings obtained or if this does not appear possible to initiate other necessary diagnostic measures. From the perspective of the medical expert, the expert recommendation is to always very carefully differentiate between these two medical errors in medical liability cases.