By Marc Stauch
This paintings provides to the theoretical realizing and dialogue of attainable recommendations to varied conceptual and useful difficulties that come up in the box of clinical negligence. it truly is a space whose criminal remedy is perceived, either in England and Germany, as containing a couple of specific problems and shortcomings. moreover, the e-book makes a contribution to the constructing box of comparative legislations, by means of utilizing an in depth and heavily targeted analytical strategy in a tightly outlined topic sector. those dual goals serve to bare the similarities and alterations among criminal cultures in a very transparent and remarkable approach. The e-book deals a impartial research among the English and German ways. the problems are handled thematically as far as attainable, in order that the place an analogous process is taken in either nations to a given factor (e.g. the traditional of care owed by means of scientific practitioners) those will mentioned side-by-side. in contrast, the place there are major transformations within the respective remedies (e.g. the traditional of threat disclosure), the English method may be mentioned first, via the German method. The e-book therefore avoids the 'country-report' kind, wherein the structures are awarded principally individually from one another, and as an alternative deals an in depth and special comparability and distinction, as among the 2 structures, in their respective criminal principles.
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Additional resources for The Law of Medical Negligence in England and Germany: A Comparative Analysis
74 Rees v Darlington Memorial Hospital  UKHL 52, paras 130 ff. See also Grubb, ‘Infertility Treatment’ (n 74 above) 172. 75 Under § 280 I BGB. This provision was passed in 2002 and codified principles that had previously been developed by the courts. 76 As noted earlier, until 2002 the reparation granted in German law for the infringement of a person’s contractual interests was limited in a key respect, in that damages were not awarded for pain and suffering. Instead, to recover for these, the patient was required to maintain a concurrent claim in tort law.
In that regard it is apparent that such claims have both a contractual and a tortious dimension. The first stems from the classical, twoparty quality of the doctor-patient relationship, in which the patient sought the doctor out in the hope that the latter might do something positive for him, ie cure or palliate his illness. For its part, tort is in point, given that the doctor, to secure this objective, must interfere directly with the patient’s body and in the process may harm the latter’s negative interests (by causing iatrogenic injury).
By contrast, as in England, a ‘wrongful life’ claim by the child (see n 55 above) will not be entertained: BGH, 18 January 1983, NJW, 1371. 77 As translated in BS Markesinis and H Unberath, The German Law of Torts, 3rd edn (Oxford, Hart Publishing, 2002) 14. 78 See D Giesen, Arzthaftung, 4th edn (Tübingen, Mohr, 1995) para 4; Katzenmeier, Arzthaftung (n 6 above) 79–81. 79 BGH, 20 September 1988, NJW 1989, 767 (768). ) 18 (B) Stauch Ch1 4/8/08 14:03 Page 19 Scope of Patient’s Protected Interests more complex.
The Law of Medical Negligence in England and Germany: A Comparative Analysis by Marc Stauch