Scholarlink

<p>Even a&#xa0;successful operation with subsequent successful recovery does not change the fact that surgical therapy constitutes an act of bodily harm according to § 223&#xa0;StGB. Furthermore, depending on the individual case constellation, it is not impossible that a&#xa0;public prosecutor might initiate preliminary proceeding due to dangerous bodily harm according to § 224&#xa0;StGB because it considers the act of using a&#xa0;scalpel to be equivalent to committing an offense with a&#xa0;dangerous tool. That depends on the specific circumstances of the case. In contrast, complicity according to § 224&#xa0;StGB is ruled out, even if the operation was performed by two surgeons. The action of the treating surgeon(s) is justified by the patient’s provision of sound confirmed consent after proper disclosure. Informed consent—which must always be documented—excludes the unlawfulness of the action. The same applies in the case of presumed or hypothetical informed consent. If this line of defense does not succeed, ultima ratio is to clarify whether there may exist a&#xa0;mistake of facts regarding the circumstances of the offence that negates the physician’s intent.</p>

错误：搜索内容不能为空，请输入英文关键词
错误：关键词超出字数限制，请精简
高级检索

Strafbare Körperverletzung trotz fachgerechter und erfolgreicher operativer Behandlung?

  • 期刊论文

  • 发表日期：

    2025年11月10日

查看全文
  • Bernd Josef Fehn,
  • Karsten Fehn,
  • Jörg Wiltfang

摘要

Even a successful operation with subsequent successful recovery does not change the fact that surgical therapy constitutes an act of bodily harm according to § 223 StGB. Furthermore, depending on the individual case constellation, it is not impossible that a public prosecutor might initiate preliminary proceeding due to dangerous bodily harm according to § 224 StGB because it considers the act of using a scalpel to be equivalent to committing an offense with a dangerous tool. That depends on the specific circumstances of the case. In contrast, complicity according to § 224 StGB is ruled out, even if the operation was performed by two surgeons. The action of the treating surgeon(s) is justified by the patient’s provision of sound confirmed consent after proper disclosure. Informed consent—which must always be documented—excludes the unlawfulness of the action. The same applies in the case of presumed or hypothetical informed consent. If this line of defense does not succeed, ultima ratio is to clarify whether there may exist a mistake of facts regarding the circumstances of the offence that negates the physician’s intent.