Gene Technology in Medical Diagnostics and Criminal Procedure and Liability for Malpractice in Germany
![handle is hein.journals/mlv9 and id is 87 raw text is:
Med Law (1990) 9:755-768 Medicine
and Law
ICML 199
Law
Gene Technology in Medical Diagnostics and
Criminal Procedure and Liability for Malpractice
in Germany
Professor Erwin Deutsch', Dr Reiner Fiillmich2, Hartmut Poppe
1 University of Gattingen, 2 Institute for Medical and Pharmaceutical Law, University
of G6ttingen, 3 Law clerk, Berlin
Abstract. The increasing employment of gene technological procedures in
medical diagnostics and criminal procedure has forced both the medical and the
legal professions to focus their attention on the complex question of liability of
physicians, lab technicians, and other personnel involved in applying these
measures. This article gives an outline, by citing practical cases, of the major
aspects of liability for malpractice that are relevant under German law. Bearing
in mind that this article will be read predominantly by members of the Anglo-
American common-law legal system, the legal aspects - even though they are
German legal aspects - are viewed in the light of the common law. The article
examines three major issues: (a) liability for diagnoses employing gene techno-
logical procedures: (b) liability for wrong testimony based on 'genetic finger-
printing': and (c) the donor's rights concerning his or her DNA-probe.
Damages for Medical Malpractice in Diagnoses Employing Gene Technological
Procedures
Assuming that a disease is known to run in families, following a classic pattern of
inheritance. Somewhere among the approximately 100 000 genes on the 23 pairs of
human chromosomes a single gene is defective. Where does the search for a causative
mechanism, a diagnostic test begin and, ultimately, a course of treatment? It has now
become possible to close in on the defective gene itself. By correlating the inheritance
of a distinctive segment of DNA - a 'marker' - with the inheritance of a disease, the
mutant gene can be localized to within one or two million base pairs, that is, less than
a thousandth of the human genome. To detect a specific 'marker' which is known to
be connected to a specific defective gene, the diagnostician exposes a sample of
ordinary DNA denatured by exposure to heat or a high degree of acidity to a DNA
probe labelled with the radioactive isotope, whose base sequence is complementary
to the base sequence of the 'marker' [1]. This new procedure is being hailed as a](ViewImageLocal?handle=hein.journals/mlv9&div=12&collection=&method=preview&ext=.png&size=3)
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Gene Technology in Medical Diagnostics and Criminal Procedure and Liability for Malpractice in Germany
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