Bringing Deadbeat Doctors to Justice

A German man will be forced to pay child support for 18 years. Tragically, he's never had the chance to sleep with the kid's mother:

Tuesday, Germany's Karlsruhe-based Federal Appeals Court ruled that a gynecologist owes $768 per month to his patient after the contraceptive patch he inserted failed to prevent pregnancy.

The hormone-releasing device was supposed to protect her for three years, but according to the court, half a year after the operation, it could no longer be found in her body.

Matt Welch's classic 2004 article on the abuse of paternity laws is here.

Comments

[FinFangFoom]

I've seen this other places, and I don't see a problem with it. The doctor is being forced to pay for the cost of his malpractice.

[brian423]

In my view, this story is only a little more outrageous than the double standard in reproductive choice created by paternity suits in general. To date, Reason hasn't given Matt Dubay's "Roe v. Wade for Men" its fair consideration. In a glib, anti-intellectual cop-out, Tim Cavanaugh shrugged his shoulders and said, "Life is unfair." But paternity suits are a mere legal construct, as opposed to an inevitable source of unfairness like the uneven distribution of beauty, brains, and talent. In this instance, therefore, political discourse and political activity could legitimately claim to help make the world a little less unfair.

[MP]

Is there any reasonable medical explanation for why the device was no longer found in the woman's body? If not, I don't see how this is anything other than a mislabeled malpractice suit.

[Lord Duppy]

Man, I'd just move to Switzerland.

[Ammonium]

Does malpractice insurance pay for child support payments?

[Captain Holly]

I've seen this other places, and I don't see a problem with it. The doctor is being forced to pay for the cost of his malpractice.

Agreed. The cash amount of the actual award isn't that outrageous as far as medical malpractice goes: Mulitply $768 by 12 by 18 and you get $165,888.

That's alot of money, but not at all out of line for malpractice awards, especially those related to ob-gyn practice. And at least this one is based on the cost of actual "damages".

[Dave B.]

If its malpractice, then at least call it that. Then his malpractice insurance would pay for it.

[shecky]

I don't understand how it could even be malpractice unless the patch was somehow never inserted at all. All that seems to be indicated is that it magically disappeared. Something's pretty fishy here.

[JD]

I agree that a malpractice suit is probably correct in this case, but framing it in terms of child support is kind of weird. If she didn't want kids, why did she have one? AFAIK, Germany's abortion laws are fairly relaxed. (Maybe she had religious beliefs that make contraception OK but abortion not OK? Just guessing, here.)

[Anon]

I see this trend as connected with the amazing advances we've had in medical technology, an unintended consequence of which is a sense of entitlement among patients. Many people seem to have developed the notion that medical procedures carry no inherent risk of failure, and only ever fail because of physician malpractice. However, just because the woman ended up pregnant doesn't mean the doctor breached the standard of care, which is the relevant legal test (at least in this country).

Perhaps the device failed because of manufacturer error. In that case, the manufacturer should be held liable. Or perhaps the medical procedures just didn't "work" through no fault of the physician (there is no medical procedure for which one can promise 100% perfect results, regardless of the treating physician's skill). In that case, it's the patient, not the physician who bears the risk.

Of course, it's difficult to judge this case without knowing more facts, but these concerns should give us all pause before we reflexively award damages to women in the plaintiff's position.

[FinFangFoom]

In Germany, abortion on demand is technically illegal in the first trimester. For health, et al, it is legal.

Since this article is in English, and the information is probably from an article in German, I don't know that it is wise to characterize what kind of claim the mother made. In any event, the relevant measure of damages is probably the cost of child support.

Capt Holly, the damages are probably half that in today's money, taking into account the time value of money.

[FinFangFoom]

Anon, I doubt that a device that is supposed to last 3 years lasting only 18 months falls in the expected, non-negligent fail rate of this thing. Conceivably it could be the manufacturer's fault, but I think it is still more probable than not that it is the doctor's fault, based on the scanty information available.

[Anon]

Well, that's why I said "it's difficult to judge this case without knowing more facts, but these concerns should give us all pause before we reflexively award damages to women in the plaintiff's position."

But, based on what's been presented (other than the fact that the physician was actually found liable), and without knowing the exact nature of the implanted device, I can't see any reason to believe that it was more likely the doctor's fault, rather than the manufacturer's.

[Eryk Boston]

Now, if the mother filed a standard paternity suit against the father, does the father have a cross complaint against the doctor?

[Sam Franklin]

lasting only 18 months falls in the expected, non-negligent fail rate of this thing

It is also possible that Germany used strict liability, rather than negligence here. Hard to know how literally to take this sketchy article, but it is noted that Europe sometimes uses strict liability.

It is also possible that the doctor made some kind of guarantee at the time of insertion. For all we know from the linked article, this could be a contract lawsuit.

[Sam Franklin]

without knowing the exact nature of the implanted device, I can't see any reason to believe that it was more likely the doctor's fault, rather than the manufacturer's.

maybe the patchmaker was found jointly and severally liable with the doctor, but the article failed to report that fact. the article didn't say that ONLY the doctor was found liable. Maybe the patchmaker settled privately with the family before trial. More info needed.

[Eric the .5b]

Now, if the mother filed a standard paternity suit against the father, does the father have a cross complaint against the doctor?

The article rather addresses this.

[Anon]

"It is also possible that Germany used strict liability, rather than negligence here. Hard to know how literally to take this sketchy article, but it is noted that Europe sometimes uses strict liability."

Are there really European countries that judge malpractice on a strict liability standard? If there are, I'm surprised they have any doctor's left. I can't imagine who would want to practice medicine under such a regime.

[Sam Franklin]

Are there really European countries that judge malpractice on a strict liability standard?

The article doesn't mention "malpractice" or "negligence." Maybe it was a defective product claim, against the manufactuerer and the dealer (in this case a doctor).

The linked article is just too shoddy and opinionated to draw any firm conclusions about what is really going on here.

[wingnutx]

Is there any reasonable medical explanation for why the device was no longer found in the woman's body?

It was found imbedded in the end of a bannana.

[downstater]

"maybe the patchmaker was found jointly and severally liable with the doctor"

summers v. tice!

man, i can't wait till exams are over.

[John in Nashville]

The linked article gives no indication that any jury considered this case, but I wonder, if a similar suit were tried in the United States, whether a jury would be instructed that they could consider the availability of legal abortion as bearing on the mother's failure to mitigate damages. (The father, not having the ability to choose whether to abort, would not likely be deemed to have failed to mitigate.)

[NoStar]

Well, at least the Doctor got to see the promised land.

[Matt]

Irresponsible hypothesis:

Bet you the doctor never inserted anything, pro- or anti- "creative" ...

[FinFangFoom]

I am almost certain that Germany does not use juries as a fact-finders.

[memnon]

German-language Focus.de writes about it

Laut OLG hatte der Arzt das Verh?tungspr?parat "Implanon" falsch eingesetzt. Das lang wirkende Verh?tungsmittel wird in einem Plastikr?hrchen oberhalb der Ellenbeuge unter der Haut implantiert. Als der Arzt bei der Frau im Juli 2002 eine Schwangerschaft in der 16. Woche feststellte, konnte das Implantat nicht mehr gefunden und dessen Wirkstoff im Blut nicht nachgewiesen werden. Die Frau konnte wegen der Geburt eine zugesagte Arbeitsstelle nicht antreten.

It was a standard lawsuit for actual damages due to a mishandled implantation.

[Sam Franklin]

What is a standard lawsuit? What is a non-standard lawsuit?

[moonbiter]

If you read German, more on this here and here. There's not a lot more there than in the source article linked to in the WaPo piece.

The device was the standard hormone implant injected into the arm. The woman in question had been seeing a guy for a few months, got knocked up although she thought she was protected, and had to turn down a job in Switzerland as a result.

As others have mentioned, this is basically a malpractice lawsuit with the damages set as child-support payments (which are here 600 Euro per month). This was not a paternity suit, and it doesn't seem like it was brought to court as such. The debate here is, I think, over the fact that in Germany the burden of proof is on the doctor: they must prove that they didn't commit an error, rather than the patients having to prove that the doctor commit an error.

[Mad Max]

Imagine a few years in the future, little Hans (or Gertrude, or whatever the kid's name is) discovers that the judicial system has officially found his very *existence* to be the product of negligence, for which his mother has to be compensated!

[M]

"not only let the biological father off the hook, but actually compensated him for what he'd paid to date"

How crude to refer to the mother that way!

[Sam Franklin]

in Germany the burden of proof is on the doctor: they must prove that they didn't commit an error, rather than the patients having to prove that the doctor commit an error.

I wonder how tat presumption impacts the medical malpractice insurance system in germany. If they tried to do that in te US, the insurance companies would scream bloody murder, I am confident. Yet Germans have decent lifespans, somehow.

[Eric the .5b]

Thanks for the additional sourcing, folks. Still sounds crazy, but a slightly different sort of crazy.