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In June 2012, the German Medical Association (Bundesärztekammer) published the statistics of medical malpractice for 2011 [1]. Still ENT-specific accusations of medical malpractice are by far the fewest in the field of hospitals and actually even in the outpatient context. Clearly most of the unforeseen incidents still occur in the disciplines of trauma surgery and orthopedics. In total, however, an increasing number of errors in treatment can be noticed on the multidisciplinary level: in 25.5% of the registered cases, an error in treatment was found to be the origin of damage to health justifying a claim for compensation of the patient. In the year before, it was only 24.7%. The reasons may be manifold, but the medical system itself certainly plays a major role in this context: the recent developments related to health policy lead to a continuous economisation of medical care. Rationing and limited remuneration more and more result in the fact that therapeutic decisions are not exclusively made for the benefit of the patient but that they are oriented at economic or bureaucratic aspects. Thus, in the long term, practising medicine undergoes a change. According to the §§ 1, 3 of the professional code of conduct for doctors (Musterberufsordnung für Ärzte; MBO-Ä) medical practice as liberal profession is principally incompatible with the pursuit of profit, however, even doctors have to earn money which more and more makes him play the role of a businessman. Lack of personnel and staff savings lead to excessive workloads of physicians, caregivers, and nurses, which also favour errors. The quality and even the confidential relationship between doctor and patient, which is important for the treatment success, are necessarily affected by the cost pressure. The victims in this context are not only the patients but also the physicians find themselves in the continuous conflict between ethical requirements of their profession and the actual requirements of the realities in the healthcare field. But also the technical and scientific progress bear new risks beside the therapeutic successes, further especially bigger hospitals require high efforts regarding organisation favouring errors in cases of deficiencies. Even the increasing juridification of the medicine that is expected to achieve a provisional highlight with the planned law of patients' rights leads to an important focus on the quality of medical care [2]. The explicit legal regulation of patients' rights, which have never been out of question up to now, confirms the impression of patients who have to be protected from their doctors. This development favours a natural mistrust in the quality of the treatment and the desire of legal verification in cases of treatment failures. A totally perfect and error-free treatment, however, will never occur. Already this fact leads to the obligation to do everything possible to reduce the risk to an absolute minimum. The risks that might arise from a relation of treatment are manifold. Not only may the patient undergo risks that arise in particular from lacking or insufficient briefing, complications, or medical malpractice. Also the doctor has to fear legal consequences if he does not stick clearly to the increasing requirements that jurisdiction and legislation impose - not least by the planned law of patients' rights. In the following, the basic principles and particularities will be described that apply for the patients' briefing. Further the different types of medical malpractice will be explained in relation to the resulting procedural consequences. Finally some current problematic fields will be described with regard to other possible liabilities or responsibilities of physicians in hospitals or doctor's offices., (© Georg Thieme Verlag KG Stuttgart · New York.)

Complaints handled by the Directorate of Health about medical treatment have been registered and analysed for the years 1980, 1985 and 1990. The analysis shows that the number of complaints against government hospitals increased fourfold from 1985 to 1990. Compensation awarded in cases where medical negligence was proved rose sevenfold from NOK 3 million in 1985 to NOK 20 million in 1990. We have reason to believe that there has been a similar increase in the number of claims for compensation, and in the amount of compensation awarded in cases of proven negligence, also in cases not involving the Directorate of Health. It is important to note that our study demonstrates an increase in serious events leading to permanent functional impairment or death. A post hoc analysis suggests that some 80% of the failures might have been avoided if an adequate system of quality assurance had been established.

Although traditional obligations of fidelity require physicians to deliver quality care to their patients, including to utilize costly technologies, physicians are steadily losing their accustomed control over the necessary resources. The "economic agents" who own the medical and monetary resources of care now impose a wide array of rules and restrictions in order to contain their costs of operation. However, physicians can still control resources indirectly through "gaming the system," employing tactics such as "fudging" that exploit resource rules' ambiguity and flexibility to bypass the rules while ostensibly honoring them. Physicians may be especially inclined to game the system where resource rules seriously underserve patients' needs, where economic agents seem to be "gaming the patient," with needless obstacles to care, or where others, such as hospitals or even physicians themselves, may be denied needed reimbursements. Though tempting, gaming is morally and medically hazardous. It can harm patients and society, offend honesty, and violate basic principles of contractual and distributive justice. It is also, in fact, usually unnecessary in securing needed resources for patients. More fundamentally, we must reconsider what physicians owe their patients. They owe what is theirs to give: their competence, care and loyalty. In light of medicine's changing economics, two new duties emerge: economic advising, whereby physicians explicitly discuss the economic as well as medical aspects of each treatment option; and economic advocacy, whereby physicians intercede actively on their patients' behalf with the economic agents who control the resources.