Medical records can be used in court

Individual errors and the consequences for the burden of proof


The attending physician is obliged to properly document his treatment. If he does not record "medically required essential measures and their results", it is assumed that he did not take these measures.

So if there is a gap in your patient file, you don't have to worry: the doctor didn't do anything that wasn't in the file. For his discharge, he would have to be able to prove that he actually carried out the measure.

Lack of education

If you have suffered damage from treatment, the risks of which your doctor did not inform you about in advance or did not inform you comprehensively enough in advance, your doctor is liable to you for compensation. This only does not apply if he can prove that you would have suffered the damage even if he had given you extensive information.

Insufficient evaluation of findings

If certain findings should have been made and the doctor failed to do so, there is also a gross malpractice. The consequence is, in turn, a simplification of evidence for you.

No specialist

Another reason for a reversal of the burden of proof can also be the "lack of specialist status" of your doctor: If the treatment was carried out by an incompetent doctor, it is assumed that the lack of medical competence was the cause of the damage. To relieve the burden, the doctor concerned would now have to prove that the damage to the patient was not caused by his lack of knowledge.

Hospital staff

Nurses, nurses, midwives - the burden of proof is distributed differently depending on whether the process involves contractual or tortious claims. In the case of claims from the treatment contract, the doctor is always liable for the errors of his "vicarious agents". The burden of proof is on you. In the case of claims arising from a crime (tort), the doctor can relieve himself by providing evidence that he has selected, instructed or supervised the staff carefully enough.

Special feature: lack of hygiene

In your favor, it is assumed in accordance with Section 23 Paragraph 3 Sentence 2 IfSG (Infection Protection Act) that the infection with a multi-resistant germ is due to incorrect behavior on the part of the medical staff. For their part, the doctor or hospital operator has to prove that everything possible has been done to provide you with infection-free care.

However, they will only be able to prove exonerating if they can prove by submitting written records that they have complied with the hygiene recommendations of the Robert Koch Institute.

Special feature: prima facie evidence

The prima facie evidence also leads to a simplification of evidence in your favor: You can make use of it in typical events. That means when there is a general treatment risk has realized. In these cases it is assumed that the treating person acted incorrectly.

Example: A patient lies in the room with a person with scarlet fever and also gets scarlet fever.


Evidence in court can be:

  • Certificates; the most important document in the medical process is the medical record
  • Witnesses
  • expert
  • Inspection by the court
  • Questioning the parties