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In which country can you assert your claim and which law applies?

Have you undergone cross-border treatment in Germany and suffered medical malpractice on the part of the healthcare provider, or has he or she failed to correctly inform you as part of the treatment?

We will explain below where you can assert your claims and what law applies.

Whether you can assert your claims in Germany, or also in your state of residence within the EU, because of harm that has been caused to your health, depends on the question of which court has international jurisdiction for your claims. This jurisdictional issue is regulated in EU Regulation No 1215/2012 for cases in which the healthcare provider has his or her place of residence in an EU Member State and you would like to assert a liability claim against him or her in court. Accordingly, claims against the healthcare provider are as a matter of principle to be asserted in his or her state of residence. If the healthcare provider is a hospital, the claims need to be asserted where the registered office, central administration or main establishment is located.

1. Ms Müller travelled to Germany for a hip operation and had a prosthesis implanted. The operation led to a serious infection of the thigh around the prosthesis, which ultimately meant that the leg had to be amputated. The hospital facility has its registered office in Germany. Ms Müller needs to assert her claims for compensation or for damages for pain and suffering in Germany.

2. Ms Müller was treated by a dentist in Germany, where she received implants. The dentist in attendance, who has his place of residence in Luxembourg, failed to use the proper implants. Ms Müller can assert her claims in court in Luxembourg.

There are specific circumstances under which you can also assert your claims in a different EU Member State than the state of residence of the healthcare provider. In example case No. 2, you may also assert your claims in the State in which the treatment was carried out in accordance with Article 7 No. 1 of EU Regulation No 1215/2012, i.e. in Germany.

Since court proceedings at the place of treatment or at the place of residence of the healthcare provider may be time-consuming and costly, it may also be possible under certain conditions for you to assert your claims at your place of residence. This is possible if the damage to health was caused in the state in which you live. This possibility is opened up to you by the court venue of the unauthorised act. The place is taken as a basis here where the harmful event took place, or where its occurrence is immanent. This includes both the place where the harm took place (place of the result), and the place of the causal occurrence (place of commission). If you have undergone cross-border treatment in Germany, it may therefore be that the place of commission (the place where the malpractice occurred) and the place of the result (the place where the damage to health took place) differ. You can choose between the two places in this event.

A patient travels to Germany to have a disease treated, and the doctor there prescribes medicine to him without however informing the patient of the potential side-effects. When he returns to his place of residence in France and takes the medicine, serious side-effects occur.

The patient can choose in this case whether to assert his claims under the treatment contract in Germany with regard to the violation of the obligation to provide information, or to assert his claims in France for physical injury.

The example below and the accompanying diagram provide you with an overview of the individual jurisdictions:

The insured person lives in France, and travels to Germany to consult a doctor whose place of residence is in Luxembourg.

The doctor prescribes medicine to the patient without asking about intolerances.

The patient takes the medicine after returning to France and starts suffering from respiratory difficulties after only a few minutes. These become so bad that circulatory disturbances occur in the brain and the patient becomes comatose. She is transported to a special clinic in Spain for further treatment, where she ultimately dies.

Where can the insured person’s heirs assert their claim?

place of jurisdiction

A lawsuit would therefore be possible in one of the three states in this case if no specific court venue was agreed on.

As you cannot know in advance where the damage to health will ultimately occur, the alternative option exists of agreeing on a court venue. This is a contract which you can conclude with the healthcare provider in which the jurisdiction of the court of the Member State (for instance your state of residence) is bindingly agreed for litigation which has already been initiated, or for future litigation arising from a specific legal relationship.

If the court in which you wish to assert your claims has found that it has jurisdiction, it will examine in a second stage which law applies. You can also agree in advance in this regard with the healthcare provider which law (for instance the law of your state of residence) is to apply. If you do not agree on such a selection of court venue, as a matter of principle the law applies of the state in which the healthcare provider has his or her habitual place of residence. If therefore the healthcare provider has his or her place of residence in Germany, German law applies.

For cases in which you assert a tortious claim because of an unauthorised act, as a matter of principle the European legislation takes as a basis the law of the state in the territory of which the direct harm has been caused (= place of the result). This means that French law would be applicable in the example above since the death in Spain only occurred as consequential damage.



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