Wegweiser Patients · Your rights in treatment and when things go wrong Deutsch

⚖️ Burden of proof in treatment errors

Who has to prove what? § 630h BGB makes proof easier for you in certain cases, for example gross errors or missing documentation.

burden of proof 630h gross treatment error documentation fully controllable risk causation

In brief

In a dispute, facts have to be proven. Who has to prove them matters.

In certain cases the law makes proof easier for you. It then presumes in your favour an error or the link with the harm.

The doctor must prove that they informed you and that you consented.

If an important entry is missing from the record, it is presumed that the measure was not carried out.

Step by step

  1. Check the recordHave it checked whether important measures are missing or entries were changed afterwards.
  2. Clarify the information givenNote what was explained to you.
  3. Secure documentsKeep copies of all forms.
  4. Expert adviceHave an advice centre or a lawyer assess the case.

Deadlines

presumption
In gross treatment errors, the causal link with the harm is presumed§ 630h Abs. 5 BGB
Watch out – common mistakes
  • The presumptions apply only in the cases named in the law.
  • Whether an error is "gross" is an assessment that in a dispute often depends on expert witnesses.
  • Without such exceptions, the burden of proof lies in principle with the claimant (see uncertain points).
In depth · legal basis, figures and practice – for advisers and professionals

The rules of § 630h BGB

Abs. 1: An error by the treating practitioner is presumed if a general treatment risk has materialised that was fully controllable for the practitioner and that led to injury to the patient's life, body or health. Abs. 2: The treating practitioner must prove that they obtained consent and gave information in line with the requirements of § 630e; if the information was insufficient, they can argue that the patient would have consented even with proper information.

Documentation, competence, gross error

Abs. 3: If the treating practitioner did not record a medically required essential measure in the treatment record or did not keep the record, it is presumed that they did not take the measure. Abs. 4: If the treating practitioner was not competent for the treatment, it is presumed that lack of competence caused the harm. Abs. 5: If there is a gross treatment error and it is in principle suited to cause an injury of the kind that actually occurred, it is presumed that the error was the cause; this also applies in certain cases to a breach of the duty to obtain or secure medically required findings.

Basic rule

That the patient must otherwise in principle set out and prove the treatment error, the harm and the causal link is derived here from the structure of the provision. This was not backed by a separate case-law source.

Who is responsible
  • Court (civil court)
  • Specialist lawyer for medical law (Rechtsanwaltskammer, bar association; no recommendation of individuals)
  • Expert commission or arbitration board
Further reading
Access to records and copy of the treatment recordExpert opinions: Medizinischer Dienst and arbitration board

Quick questions

Worum geht es bei „Burden of proof in treatment errors“?
Who has to prove what? § 630h BGB makes proof easier for you in certain cases, for example gross errors or missing documentation.
Which deadlines and figures matter?
presumption: In gross treatment errors, the causal link with the harm is presumed (§ 630h Abs. 5 BGB)
What should I do first?
  • Check the record: Have it checked whether important measures are missing or entries were changed afterwards.
  • Clarify the information given: Note what was explained to you.
  • Secure documents: Keep copies of all forms.
What do I need to watch out for?
  • The presumptions apply only in the cases named in the law.
  • Whether an error is "gross" is an assessment that in a dispute often depends on expert witnesses.
  • Without such exceptions, the burden of proof lies in principle with the claimant (see uncertain points).
Evidence
  • Gesetze im Internet, BGB § 630h, retrieved 20 September 2026
  • Gesetze im Internet, BGB § 630f, retrieved 20 September 2026
As of

September 2026 · Sources and method

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