• Bernd-Rüdiger Kern.
• kern@rz.uni-leipzig.de
• Z Arztl Fortbild Qualitatssich. 2004 May 1; 98 (3): 222-6; discussion 230-1, 236-7.

AbstractFirst we will have to identify the components determining the standard for medical liability in civil law cases. The civil courts have so far uniformly regarded the medical standard defined by physicians themselves as the standard of legal liability. Medical standards are based on scientific knowledge, practical experience and professional acceptance. Clinical guidelines can but need not necessarily reflect medical standards. Moreover, they cannot establish a standard. Second, on this basis the question will be whether economic restrictions should be allowed to alter the standard of legal liability. The answer depends, namely on what is meant by economic restrictions--rationalising or rationing? Rationalising need not be inconsistent with the standard. There are contradicting opinions in the legal literature about whether rationing is considered permissible. With regard to our social insurance system some authors point out that the highest possible standard is established by the statutory health insurance. With reference to the civil law, though, others demand that the medical standard must be given top priority. In accordance with the latter opinion rationing is only permitted in cases of a natural shortage of resources. Shortage of economic resources must not influence the standard of legal liability.

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