Title: The Development of Medical Liability in Germany 1800-1945

Author: Colm Peter McGrath, Corpus Christi College

Abstract: This thesis examines the development of medical liability in Germany during its intense formative period from 1800-1945. The focus is on how the fault requirement in civil law was conceptualised and applied to liability for errors in the diagnosis and treatment of a patient. By focusing on the development of the law, and how it related and responded to changes in the nature of medicine, medical practitioners and healthcare over this period, this thesis uncovers a rich interaction between the legal and medical narratives of fault. In doing so, it offers an account of legal development where the law and lawyers were deeply embedded in, and influenced by, that broader social context. It identifies a gradual shift towards asserting courts’ independence from the medical narrative alongside greater willingness to question accepted practice, particularly in light of medical advances. The thesis says nothing directly about the closely related topic of liability for failure to secure the patient’s consent.

We begin by mapping medicine and medical practice during this period. We then consider the evolution of ‘internal’ regulatory mechanisms and conceptions of error, in particular discussion over how to define a ‘Kunstfehler’ during the nineteenth century. We then unpack how the legal relationship between practitioner and patient was framed in nineteenth century Germany in criminal law, contract law and the law of delict before analysing the attendant standards of care and their application. Finally, we examine the changes wrought by the Bürgerliches Gesetzbuch and the growth of medical liability and technology in the first half of the twentieth century.

The thesis offers a heavily contextualised study of legal development in a core area of private law and concludes that the pattern of development here was driven by acceptance of, and eventually reaction against, a concept of fault rooted in the medical discourse.