Patient rights under German law, who has to prove what under § 630h BGB, the free expert commission route, time limits and realistic compensation figures – written for patients treated in Germany.

Medical Malpractice in Germany: How to Find a Lawyer and Prove Your Case

📅 Last updated 10 August 2026 • ✏ Henrik Momberger, Attorney at Law (Rechtsanwalt) • ⏱ Reading time: 11 min

What German law actually requires of a doctor

The starting point is contractual. § 630a Abs. 1 BGB defines the treatment contract: the practitioner owes the promised treatment, the patient owes the fee. What is not owed is a particular result. § 630a Abs. 2 BGB then sets the standard: treatment must accord with the generally recognised professional standards existing at the time of treatment, unless something else is agreed.

Around that core sit a set of duties that generate most successful claims:

• Information and consent (§§ 630d, 630e BGB). The patient must be informed about the nature, scope, execution, expected consequences and risks of the measure, its necessity, urgency, suitability and prospects of success – and about alternatives where several equally indicated methods carry materially different burdens, risks or chances of recovery. The information must be given orally by the practitioner or an appropriately trained person (§ 630e Abs. 2 Nr. 1 BGB); a signed form alone is not enough. It must be given in good time and in a way the patient can understand – which for a patient who does not speak German means the information must be conveyed in a language they actually follow.
• Documentation (§ 630f BGB). Records must be made contemporaneously, kept for ten years, and any later alteration must remain identifiable along with its original content and the time of the change.
• Disclosure of errors (§ 630c Abs. 2 Satz 2 BGB). On request, or where necessary to avert danger, the practitioner must inform the patient of recognisable treatment errors. § 630c Abs. 2 Satz 3 BGB then permits use of that disclosure against the practitioner in criminal or regulatory proceedings only with their consent – a striking protection that has no obvious parallel elsewhere.
• Economic information (§ 630c Abs. 3 BGB). Where cover for the cost is not secured, the patient must be informed in text form before treatment. This is directly relevant to self-payers and patients travelling to Germany for treatment.

The burden of proof – § 630h BGB in full

This provision decides German malpractice cases. The default is that the patient proves error, harm and causation. § 630h BGB then lists the exhaustive exceptions:

Provision	Situation	Effect
§ 630h Abs. 1 BGB	Fully controllable risk materialised (hygiene, equipment, positioning, staff coordination)	Error is presumed
§ 630h Abs. 2 Satz 1 BGB	Consent and information	Practitioner must prove compliance – a true reversal
§ 630h Abs. 2 Satz 2 BGB	Hypothetical consent (“you would have agreed anyway”)	Defence available to the practitioner
§ 630h Abs. 3 BGB	A medically indicated essential measure is not documented	Presumed not to have been taken
§ 630h Abs. 4 BGB	Practitioner not qualified for the treatment	Causation is presumed
§ 630h Abs. 5 Satz 1 BGB	Gross treatment error capable in principle of causing this type of injury	Causation is presumed
§ 630h Abs. 5 Satz 2 BGB	Failure to obtain or secure findings, where the finding would with sufficient probability have required a reaction	Same presumption

The free route: expert commissions and the Medical Service

Before litigation, Germany offers two assessment routes that cost the patient nothing.

Expert commissions of the medical associations

Each regional medical association (Landesärztekammer) operates an expert commission or conciliation board. The procedure is written, free of charge for the patient, and takes around fifteen months – substantially faster than litigation. Jurisdiction lies with the association at the place of treatment, not your place of residence, which is the relevant point for patients who have since left Germany. Participation is voluntary and the outcome binds nobody; the court route remains fully open whatever the result.

The decisive practical advantage is the effect on time limits. The Federal Court of Justice held on 17 January 2017 (VI ZR 239/15) that an application to a medical association's conciliation board suspends the limitation period even where the doctor or the liability insurer refuses to participate. Filing therefore protects the claim while it is assessed at no cost.

The Medical Service under § 66 SGB V

If you are covered by German statutory health insurance, § 66 SGB V provides that your insurer shall support you in pursuing claims arising from treatment errors. In practice this means the insurer commissions an assessment by the Medical Service (Medizinischer Dienst) under § 275 Abs. 3 Nr. 4 SGB V, at no cost to you. This is one of the most valuable entitlements in the German system – and it is not open to privately insured patients, self-payers or patients who travelled to Germany for treatment. For them the alternatives are the expert commission, a privately commissioned opinion, or independent evidence proceedings under §§ 485 ff. ZPO.

The numbers, honestly

2024	Expert commissions (medical associations)	Medical Service (MD)
Cases assessed	7,808 applications concluded; 4,163 decisions on the merits	12,304 opinions
Treatment error confirmed	1,134	3,731 (30.3 %)
Error with causation / claim	928 (22.3 % of merits decisions)	2,825 (23 % of all allegations)

Sources: Bundesärztekammer, Behandlungsfehler-Statistik 2024; Medizinischer Dienst Bund, Jahresstatistik Behandlungsfehler 2024 (published 30 October 2025 – the most recent full dataset available as at August 2026).

Roughly one allegation in four is substantiated. That is neither the near-certainty some claims-management websites suggest nor the hopeless prospect that hospitals sometimes imply.

How the German system differs from the US system

	Germany	United States (typical)
Decision-maker	Professional judges (Landgericht, § 71 Abs. 2 Nr. 9 GVG)	Jury
Punitive damages	None; foreign awards unenforceable (BGH, 4 June 1992 – IX ZR 149/91)	Available
Lawyer's fee	Statutory scale; contingency fees prohibited (§ 49b Abs. 2 BRAO)	Contingency fee standard
Costs if you lose	You pay the other side's statutory costs (§ 91 ZPO)	Each side bears its own
Expert evidence	Court-appointed neutral expert	Competing party experts
Pre-action discovery	None; but a free right to the records (§ 630g BGB)	Extensive discovery

What to do first

1. Request the complete records under § 630g BGB. In writing, asking for the full file including imaging, operating notes, anaesthesia records, nursing documentation and consent forms. The first copy is free.
2. Write down your own account now, with dates, names and what you were told. Memory of a treatment sequence degrades quickly, and it is often the only evidence on the consent conversation.
3. Do not sign a settlement or a waiver offered by the hospital or its insurer before the records have been assessed.
4. Check your insurance cover. Statutory health insurance triggers § 66 SGB V support; legal expenses insurance may cover the claim; both change the economics entirely.
5. Choose your route – expert commission, Medical Service, or straight to a specialist lawyer. Watch the limitation period while you do (§§ 195, 199 BGB).

Related pages

• Personal Injury Lawyer in Germany
• Car Accident Lawyer in Germany
• Criminal Defense Lawyer in Germany

Frequently asked questions

What counts as medical malpractice under German law?

German law does not promise a cure. Under § 630a Abs. 1 BGB the practitioner owes treatment, not success, and under § 630a Abs. 2 BGB that treatment must meet the generally recognised professional standards applicable at the time. A poor outcome is therefore not in itself a claim. Liability arises where treatment fell below that standard (a Behandlungsfehler), or where the patient's consent was invalid because information was inadequate under § 630e BGB – the second route is in practice often the stronger one.

Who has to prove what?

As a rule, the patient must prove the error, the harm and the causal link between them. § 630h BGB sets out the exceptions, and they are the heart of every German malpractice case: a fault is presumed where a fully controllable risk materialised (§ 630h Abs. 1 BGB, e.g. hygiene, equipment, positioning); the practitioner must prove that valid consent was obtained and proper information given (§ 630h Abs. 2 BGB); an undocumented but medically indicated measure is presumed not to have been taken (§ 630h Abs. 3 BGB); causation is presumed where the treating person lacked the necessary qualification (§ 630h Abs. 4 BGB); and, decisively, causation is presumed after a gross treatment error that is in principle capable of causing the injury suffered (§ 630h Abs. 5 Satz 1 BGB). A comparable presumption applies to a failure to obtain findings (§ 630h Abs. 5 Satz 2 BGB).

What is a “gross” treatment error?

It is the finding that shifts the burden of causation, and it is therefore what the whole case is usually fought over. The courts describe it as a clear breach of established medical rules or secured medical knowledge – an error that, viewed objectively, is no longer comprehensible and simply must not happen. One point is frequently misunderstood: the legal classification as “gross” is made by the court, not by the medical expert. The expert supplies the medical assessment; the judge draws the legal conclusion.

Can I get my medical records?

Yes, and it is always the first step. § 630g BGB gives you a right of access to the complete file without delay, and the first copy is free of charge (§ 630g Abs. 1 Satz 4 BGB). Records must be kept for ten years after the end of treatment (§ 630f Abs. 3 BGB) and, since § 630f Abs. 1 BGB requires that any subsequent alteration remain identifiable together with its original content and timing, later “corrections” to a file are themselves evidence. Heirs and close relatives have access rights under § 630g Abs. 3 BGB.

Is there a free route before going to court?

Two, and both are underused by international patients. First, the expert commissions and conciliation boards of the regional medical associations (Gutachterkommissionen und Schlichtungsstellen der Landesärztekammern) assess cases in writing, free of charge for the patient, in around fifteen months on average. The outcome is not binding and the court route stays open. Crucially, filing there suspends the limitation period – the Federal Court of Justice held on 17 January 2017 (VI ZR 239/15) that this applies even where the doctor or the insurer refuses to take part. Second, if you are covered by German statutory health insurance, § 66 SGB V obliges your insurer to support you, in practice by commissioning a free assessment from the Medical Service (MD). That second route is not available to privately insured patients, self-payers or medical tourists.

How often are complaints upheld?

The official figures give a realistic picture. The medical associations' expert commissions concluded 7,808 applications in 2024, of which 4,163 were decisions on the merits; a treatment error was found in 1,134 cases and an error with causation and a resulting claim in 928 cases – 22.3 percent of decisions on the merits. The Medical Service produced 12,304 opinions in 2024 and confirmed a treatment error in 3,731 of them (30.3 percent), with causation established in 2,825 cases (23 percent of all allegations). In other words: roughly one complaint in four or five is substantiated.

How much compensation can I expect?

There is no official schedule and no reliable average. The widely circulated “Schmerzensgeldtabellen” are private collections of decided cases with no binding force, and the Federal Court of Justice rejected day-by-day calculation in its judgment of 15 February 2022 (VI ZR 937/20), requiring an overall assessment of all circumstances. Awards approaching one million euros exist – the Landgericht Göttingen awarded 1,000,000 euros on 14 August 2025 (12 O 85/21), reportedly not yet final, to a severely disabled child after an omitted emergency caesarean – but these are the extreme upper end, reserved for catastrophic lifelong injury. For international readers the important correction is this: in severe cases the material compensation under § 249 BGB (lifelong care, loss of earnings, increased needs, usually paid as an annuity) regularly exceeds the pain and suffering award several times over.

What is the time limit?

Three years under § 195 BGB, running from the end of the calendar year in which the claim arose and you knew, or without gross negligence should have known, of the relevant circumstances and the liable party (§ 199 Abs. 1 BGB). Knowledge of a bad outcome is not enough – what is required is knowledge of facts from which a lay person can infer that the doctor departed from the usual course of treatment. For injury to life, body, health or liberty there is an outer limit of 30 years from the event, independent of knowledge (§ 199 Abs. 2 BGB).

Are there punitive damages or contingency fees?

No to both. German damages are compensatory: § 253 Abs. 1 BGB permits non-material compensation only where the law expressly provides, and the Federal Court of Justice confirmed on 4 June 1992 (IX ZR 149/91) that US punitive damages awards cannot even be enforced in Germany. Contingency fees are prohibited by § 49b Abs. 2 Satz 1 BRAO save for the narrow exceptions in § 4a RVG, and German lawyers may not advance your court costs. Germany also applies the loser pays rule (§ 91 Abs. 1 Satz 1 ZPO), although reimbursement is limited to the statutory RVG fees (§ 91 Abs. 2 Satz 1 ZPO). Realistic funding routes are legal expenses insurance, commercial litigation funding, or legal aid under §§ 114 ff. ZPO, which is open to foreign nationals.

Which court, and do I need a lawyer?

Medical liability claims go to the Landgericht regardless of the amount in dispute: § 71 Abs. 2 Nr. 9 GVG assigns disputes arising from medical treatment exclusively to that court. Representation by a lawyer is mandatory there (§ 78 Abs. 1 ZPO). Jurisdiction lies at the place of treatment, which matters if you have since left Germany. There are no juries: professional judges decide, assisted by court-appointed medical experts. The German term “Schwurgericht” is sometimes mistranslated as “jury court” – it is in fact a criminal chamber of professional judges and lay assessors, and it has nothing to do with civil malpractice claims.

This page provides general information on German law as of the date shown above and does not constitute legal advice for an individual case. German statutes and case law may change. Momberger Rechtsanwälte is a German law firm admitted to the Rechtsanwaltskammer Düsseldorf; we advise on German law only.