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The contract between doctor and patient is characterized by a special relationship of trust and the peculiarity that a service is provided to human beings. Against this background and in the absence of a statutory regulation, there used to be much debate about the legal nature of this special contract. Opinions differed, especially on the question of whether and under what conditions medical treatment contracts should be classified as contracts for work and services.
When the Patients’ Rights Act came into force in 2013, the treatment contract was standardized in Section 630a of the German Civil Code. According to Section 630b BGB, the law on contracts for services is to apply to treatment contracts. But has this finally settled the dispute about the legal nature of the contract? The dissertation addresses the question of whether, even after the Patients’ Rights Act has come into force and contrary to the assignment of § 630b BGB, there are still medical treatment contracts that fall under the law of contracts for work and services.
The first chapter is devoted to the legal situation before the Patients’ Rights Act came into force. The presentation of the different views in case law and doctrine ends with the conclusion that the contract was previously predominantly classified as a contract for services. In the following, case groups are analyzed in which the application of the law on contracts for work and services was considered. These include, for example, dental prosthetic treatment, non-indicated cosmetic surgery, the manufacture of technical or orthopedic aids, and sterilization and castration.
The second chapter traces the legislative history, enactment and nature of the Patients’ Rights Act. The last chapter deals with the legal situation after the Patients’ Rights Act came into force. Sections 630a and 630b of the German Civil Code, which are relevant to the classification question, are discussed critically. Who belongs to the circle of service providers and what is meant by „medical treatment“?
In the following, the author deals with how the problematic treatment contracts presented are to be qualified according to the new legal regulation. The practical consequences of this legal classification are then discussed. How should deficiencies in performance and the requirement of acceptance be dealt with? Does the physician have a right to rectification? In addition, promises of success made by physicians will be examined critically. Are such promises permissible at all and what requirements must they meet? The work is rounded off with a legislative proposal by the author that implements the criticism found in the work.
keywordsArzt Arztrecht Arztvertrag Behandlungsvertrag Dienstvertrag Erfolgsversprechen Konsiliararzt Kosmetische Operation Patient Patientenrechtegesetz Rechtsnatur Schönheitsoperation Werkvertrag Werkvertragsregime Zahnprothetische Behandlung §§ 630a ff. BGB
Ihr Werk im Verlag Dr. Kovač
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