In 1933, the German lawyer Friedrich Franz König published an essay on medical negligence. ¹ He pointed out that the number of negligence cases in Germany had risen to unprecedented heights in recent times. The years 1927–29 had seen an increase of close to 50% of negligence cases, as the insurance statistics demonstrated. König suggested that such a rise was due to the global economic crisis that had hit Germany hard. ² As a second argument for this growth, König referred to the doctor–patient relationship. He saw patients as increasingly estranged from their doctors and lacking confidence in the representatives of the medical profession. ³ Finally, König claimed that the popularisation of medical sciences had made patients less reluctant to sue doctors. He wrote: ‘The traditional belief in the authority of doctors has vanished.’  ⁴ Although such arguments seem plausible, it remains to be discussed whether (and to what extent) broader social trends had an impact on the figures of negligence cases. ⁵ The democratisation of scientific knowledge, and the availability of data and information, as well as the rise in popularity of so-called alternative medicines and hence the contestation of general medical practice, all seem to have encouraged patients to sue doctors more readily for negligence. ⁶

This chapter discusses medical jurisdiction in Germany as a case study to explain how professional accountability changed during the nineteenth century. It examines the transformation that occurred in medical jurisdiction, in order to discuss how doctors were held responsible for professional malpractice and how legal procedures changed. The transformation of medical jurisdiction is understood as the result of changing patterns of accountability in more general terms. The French sociologist François Ewald sees a shift in accountability in the workplace, from the idea of individual liability to the collectivisation of personal risk, as an indicator of modern European society. While an individual would traditionally be accountable for his or her performance at work and possible injury or damage in the workplace, the complexity of labour in an industrialised society created a new idea of accountability that Ewald links to the emergence of the term ‘accident’. ⁷ In the course of the nineteenth century, most employers learnt to accept that work, particularly in the new industrial workplaces, had become too complex generally for workers to avoid making mistakes. ⁸ By the end of this development, the strict liability of the employer became a common feature for occupations in European nation states – hence Ewald's argument that such a transition from individual accountability to social insurance should be understood as the beginning or the origin of modernity. ⁹

In practical terms, the emergence of the concept of the ‘accident’ meant that employers and employees no longer faced legal persecution in cases of professional misconduct. This is why Ewald's interpretation is closely linked to the emergence of the welfare state in Europe. From the late nineteenth century, most accidents in the workplace were covered by insurance policies, with a rising number of states introducing compulsory insurance systems for employees. ¹⁰ To explain such a transition, historiography has emphasised the evolving relationship between risk, responsibility, and statehood. Julia Moses writes in her comparative study of social states in Europe: ‘to contemporaries in the late nineteenth century, accidents had seemed a shadowside of industrial modernity that would require a thoroughly modern solution: national social policy managed by a modern bureaucracy.’  ¹¹

Although the state as the manager of ‘risks’  ¹² became a key player in modern industries, such interpretation appears to be more difficult to translate into the medical profession. The introduction of the term ‘medical negligence’ around 1800 can be seen as indicative of a renegotiation of doctors’ accountability. Due to the increasing complexity and sophistication of medical therapies, it became increasingly unlikely that a single medical authority could provide reliable, consistent, and long-lasting guidelines for medical jurisdiction. Negotiating the legal frameworks included arbitrating professional, scientific, and legal politics. The question arose as to whether the state would need to act as legislator or institutional innovator to master the challenges of medicine and modernity. A substantial number of doctors in Germany argued in favour of medical disciplinary courts, but it took until the last third of the century before so-called courts of honour were introduced. Until this period, doctors, politicians, and the public discussed whether medical negligence should be treated as a civil or criminal offence.

The chapter also addresses institutional responses to the challenges of modernity. The late Napoleonic and Restoration periods saw the birth of medical commissions in most German states. Such medical advisory boards were intended to ensure the quality of medical training. They also advised the ministries in the German states in cases of medical negligence. ¹³ Exploring the archival material produced by the medical commission in Hanover, the chapter explores different cases of negligence. While the need for expertise in cases of medical negligence had been identified by the authorities at the beginning of the nineteenth century, legal reform was delayed until the last third of it.

Finally, the chapter points to an additional element that constituted the transformation of liability in the workplace. In accordance with the so-called risk historiography, it is argued that collectivising professional accountability not only meant the rise of the state as the manager of ‘risks’ but also, and arguably more importantly, the commodification of the latter. ¹⁴ The invention of liability insurance for doctors in the 1880s will be used as a point in case. While the traditional idea of individual accountability prevailed in modern medicine, the opportunities to tackle the economic consequences of professional liability changed fundamentally.

The first popular court case and the discourse on medical negligence from 1800

Until around 1800, the German term used for medical misconduct was Unkunst, a word that went back to the criminal code established by the German emperor Charles V in 1532, known under its Latin name of Constitutio Criminalis Carolina. ¹⁵ The Carolina sanctioned the suing of a doctor for compensation in cases of serious professional misconduct. It distinguished between cases where doctors were accused of failing to meet professional medical standards (Unkunst) and those where patients suffered due to carelessness or neglect (Unfleiss). ¹⁶ The Carolina listed a number of prerequisites necessary to sue a doctor. It laid down that medical experts should advise the judge in his decision, and also regulated the amounts of compensation for different forms of misconduct. ¹⁷

With regard to German medicine, a new word entered the medical, legal, and political discourse around 1800. At the turn of the nineteenth century, medical professional misconduct began to be referred to as Kunstfehler, which translates as ‘medical negligence’. The first mention in a German encyclopedia dates to 1797, but it was the first prominent court case a few years later that sparked wider public discussion. ¹⁸ In December 1811, Ernst Horn, a Professor at the Berlin Charité hospital was sued over the death of one of his patients. The twenty-one-year-old Louise Thiele had been hospitalised in August 1811 and diagnosed with hysteria. The doctor recommended the full variety of applications commonly prescribed at the time. Cold water baths were applied with doses of a hundred buckets of cold water. The patient was put in a rotating bed, an apparatus inspired by the English swing machine, restrained and rotated with a cadence of 120 times per minute. ¹⁹ After an additional number of other treatments that all failed to calm her, Thiele was finally put in a restraining jacket, covered in two woollen sacks and left to herself. Unattended for a couple of hours, she died of a heart attack on 1 September 1811. ²⁰

Heinrich Kohlrausch, one of Horn's colleagues at the hospital, filed a complaint against the doctor to the Prussian Ministry of Justice, blaming him for professional misconduct and cruelty. ²¹ Kohlrausch and Horn had been at odds over several other professional and also personal issues beforehand. It was well known that the two did not show any sympathy towards each other. ²² The Prussian Ministry of Justice considered whether Kohlrausch's complaint should be moved to a criminal court. Johann Christian Reil, one of the experts who acted as medical consultant to the ministry, argued against a prosecution. In a private letter to a colleague, Reil criticised Kohlrausch as stupid, mean, and devious. ²³ By some mysterious route, Reil's private correspondence found its way into the hands of Kohlrausch who forwarded it to the ministry. ²⁴ The Prussian Ministry of Justice finally decided that the case should be moved to court. Further evidence was collected, experts consulted, and witnesses heard. In November 1812, Horn was acquitted and found not guilty. Kohlrausch left the Charité the following year. ²⁵

The conflict between Horn and Kohlrausch counts as the first modern court case of medical negligence, not least due to the prominence it gathered in the public reaction. To a certain extent, it appears to be a personal feud between colleagues. The medical historian Moritz Kalisch, who published a number of documents on the case in 1860, argued in favour of a conspiracy against Horn. ²⁶ However, this was only part of the story. The political authorities had felt the necessity to respond to Kohlrausch's accusations because they had caused public interest. ²⁷ In this context, it is important to consider that an earlier complaint by a relative of Louise Thiele had been turned down by the ministry. ²⁸ As the trial gained more prominence, the Prussian authorities acted out of necessity. ²⁹ Independent of Kohlrausch's motivation and the outcome of the trial, the Thiele case also caused a public debate about medical negligence. ³⁰ The following decades saw a substantial number of publications on the topic. While there were more theoretical tracts about doctors’ accountability until approximately the 1850s, case studies in medical negligence increasingly appeared during the second half of the century. ³¹

The expanding nature of medical knowledge and its impact on medical therapy was perceived as a fundamental problem in defining doctors’ accountability in fixed legal terms. As the German pathologist Rudolph Virchow argued, what was regarded as established medical therapy at one time could become serious professional misconduct at another. ³² How should the law respond? Contemporary medical authors did not grow tired of pointing out that the rising body of medical research showed many examples of groundbreaking innovations that challenged traditional assumptions about medical care. ³³ Virchow wrote that there was no authority in science that could lay down once and for all what should be allowed in medical care and what should be banned. ³⁴ With regard to medical jurisdiction, he argued against medical negligence as a criminal offence and in favour of civil legislation that would refer to the leading medical authorities for advice in such cases. ³⁵

The core of Virchow's argument advances a generally optimistic outlook on the benefits of medical research and the expansion of scientific knowledge. ³⁶ He argued that ‘there are certain types of surgery that nowadays save the lives of thousands of people that used to be seen as daring and foolhardy in the past’. ³⁷ In the context of the more general question of state interference in cases of professional accountability, two aspects seem worth elaborating upon. Firstly, a codification of good medical practice seemed restrictive with regard to innovation in medical sciences. As a general principle, scientific research needed to transgress boundaries in order to innovate. Hence, doctors depended on the liberty to experiment beyond established practices. ³⁸ In its most extreme form, such an understanding of medical science as innovation included human experimentation. ³⁹ One of the most notorious cases of medical jurisdiction in Germany involved the German doctor Albert Neisser, who injected nine female patients with blood serum from syphilis patients in 1892. Four patients developed syphilis. After a delay of several years, the Neisser case sparked a debate about the legality of human experimentation. As a result, the Prussian Ministry for Religious, Educational, and Medical Affairs passed instructions to the heads of clinics and hospitals laying down a list of regulations for such experiments. ⁴⁰ Although historiography has justly claimed that the doctor–patient relationship during this period was characterised by the disregard of medical researchers for the safety and consent of their patients, ⁴¹ the publicity of the Neisser case demonstrates that negligence cases could provide a patient (or more generally, the public) with the means to challenge doctors’ authority.

Secondly, and despite such notorious cases as the syphilis experiment, doctors claimed enormous successes in treating patients, particularly during the last decades of the nineteenth century. While, in the example of the German federal state Baden, only three out of ten babies survived a birth by Caesarean section in the period from 1865 to 1874, these figures rose to almost nine out of ten in the 1890s (with the total number of Caesareans increasing substantially). ⁴² To be hospitalised would have posed a serious risk to health in the 1850s and 1860s, but this was clearly not the case by the 1890s. ⁴³ This breakthrough in hospital surgery can be dated to the last third of the nineteenth century, when asepsis and antisepsis helped to fight gangrene, which had been a contributing factor to high mortality rates after operations. Claudia Huerkamp argues that due to more reliable practices in several fields of medicine, doctors were no longer challenged as the most reliable experts in treating illnesses from the 1850s onwards. Medical pluralism progressively disappeared and the expert status of doctors became increasingly uncontested. ⁴⁴

In the light of such successes, the inability to cure a patient began to appear as a failure of the individual doctor, rather than being attributed to the incapability of wider medical practice. This meant that increasing success in medical and surgical procedures at large correlated with a rise in the number of negligence cases brought against individual doctors. ⁴⁵ Doctors, and the medical associations of which they were members, had to defend their professional status and they worried that individual failure would damage the reputation of the wider medical profession. ⁴⁶ Patients increasingly expected to be fully and swiftly cured by a doctor, and, as patient or client, demanded successful and reliable treatment. In Germany, patients showed more readiness to sue if doctors failed to help. ⁴⁷ Finally, an increase in competition within the health sector (particularly since the 1880s) made it necessary for doctors to appear superior to lay healers and other medical personnel. ⁴⁸ As medical historiography has emphasised, growing success made the profession not less but more controversial – at least on the level of individual accountability. ⁴⁹ In this sense, the doctor–state relationship proved ambivalent. While the medical profession relied on state protection to establish university-trained doctors as the dominant and indisputable authority in the health sector, its growing self-confidence based on more successful treatment led to a cry for institutional reform and professional autonomy.

Responsibility in transition: an institutional perspective

During the second half of the nineteenth century, state-of-the-art laboratory sciences and the latest medical innovations were only reluctantly introduced into medical practice on a broader scale. Although the leading authorities could point to great successes within the profession, doctors with limited financial resources or without access to modern medical training centres had difficulties in keeping up with the latest research or in applying such breakthrough innovations to medical practice. ⁵⁰ Therefore, the image of the doctor during the second half of the nineteenth century was characterised by a certain ambiguity. What qualification, training, and performance could be expected from the ‘average’ doctor? German medical discourse referred to the idea of a generally accepted and commonly agreed upon medical expertise as a standard for doctors and as a benchmark for cases of medical negligence. ⁵¹ But who was to judge?

Since the sixteenth century, early modern German legislation offered the means to sue doctors in civil and criminal court cases. German doctors could be liable for criminal offences if a patient under their care died. They could also be sued for compensation in civil court cases for injuries or neglect. However, no specific law on medical liability existed. Instead, doctors were charged with manslaughter or bodily harm with some qualifying remarks on professions with close contact to clients or patients. ⁵² For a substantial time during the nineteenth century, German doctors argued against the practice of treating negligence as a ‘common’ crime, and hoped to establish professional courts that would treat negligence as a disciplinary offence. ⁵³

German doctors had been state-controlled and legislated since the early modern period (and with increasing intensity since the second half of the eighteenth century). Whether or not doctors were allowed to settle and practice at a specific place depended on an official licence issued by the so-called medical police. ⁵⁴ In addition, until the trade ordinances of 1869, doctors were legally bound to provide professional help to patients within their assigned district and could be forced to take on public functions. ⁵⁵ As the historian Andreas Holger Maehle writes: ‘Since the early nineteenth century German doctors had virtually been treated as civil servants. Governments could discipline them with reprimands and fines, or even withdraw their license if they showed a lack of professional competence and reliability’. ⁵⁶ The medical police were part of the ministry of the interior, which generally acted on a regional level; its members are best understood as representatives of the local or regional bureaucracy. They dealt with complaints about individual doctors, but only occasionally compiled statistical data. In essence, they represented a tool of state bureaucracy and administration – though with an exclusively regional outlook.

Due to an increasing demand for professional medical expertise, the majority of German federal states set up advisory boards, or commissions, to the (often reorganised) ministries of the interior in the first two decades of the nineteenth century. ⁵⁷ In the case of the Kingdom of Hanover (which will be used as a case study in this chapter), the commission consisted of two directors, three permanent members, and three extraordinary members, as well as two members of the pharmaceutical profession. ⁵⁸ These were all university-trained doctors (sometimes pharmacists), whose expertise was more medical than legal. The commission supervised medical training standards (including medical exams), and its members acted as consultants to the government (including the medical police) for complaints against doctors. It was the introduction of the medical commissions that coincided with the ‘invention’ of the term ‘negligence’ in the first third of the nineteenth century. Their introduction points to a new awareness on the part of German governments of the increasing complexity of modern medicine, but also to an increasing self-confidence in the medical profession: doctors could not be judged by a legal expert alone. ⁵⁹ In more general terms, the medical commissions appear as an institutional equivalent to the invention of the term ‘negligence’ and coincided with the renegotiation of the state–doctor relationship.

Although the available data overwhelmingly concerns local or regional incidents and lacks the quantity of twentieth-century statistical data, a survey of the cases dealt with by the commission in Hanover gives an indication of how medical jurisdiction and doctors’ accountability were debated in the period before 1900. ⁶⁰ A large number of files deal with disciplinary aspects that had little to do with medical expertise. Doctors were reprimanded for drunkenness or other forms of misbehaviour in public. ⁶¹ In the period between 1848 and 1850, an additional motive for disciplinary action can be identified. The 1848 European revolutions are generally understood as a turning point in doctors’ political engagement. The historian Tobias Weidner argues that medicine became an ‘un-political’ profession in the aftermath of the revolutions. ⁶² In accordance with such an interpretation, several incidents can be identified where doctors were disciplined due to political engagement. In the closing decades of the nineteenth century, political offences referred more often to socialist doctors than to their liberal colleagues. Medical jurisdiction looked beyond professional practice and towards the doctor as a public person. ⁶³

Conflicts between individual doctors can equally be found in the files of the medical commission. Senior doctors regularly complained about the government's licensing of their younger colleagues. ⁶⁴ The medical profession as a whole experienced increasing competition in the course of the century. ⁶⁵ When applying for a licence from the medical police, doctors would refer to their qualification, but also to their knowledge of the region to which they applied. Often, doctors who had just qualified would apply for a licence in their home town or somewhere close by. ⁶⁶ Such arguments of familiarity became increasingly obsolete after the medical commissions started advising on the granting of licences. However, personal networks still mattered enormously for a doctor's career.

Early modern medicine had encompassed different types of medical practitioners with distinct forms of training and social function. ⁶⁷ Physicians with university training competed with surgeons who conducted a smaller range of medical practices. Such distinctions continued into the nineteenth century and did not disappear until the early twentieth century. In a number of complaints to the medical commission of Hanover, university-trained doctors accused surgeons of carrying out practices for which they were not qualified. ⁶⁸

Although a substantial number of cases point towards the interpretation of medical courts as watchdogs for professional honour and habitus, about half of the cases in Hanover refer to medical negligence. A husband sued a doctor over the death of his wife after she died giving birth. ⁶⁹ An employer sued another doctor for an incorrect certificate for one of his employees. ⁷⁰ Although the figures are in no way representative, the Hanoverian cases allow for the conclusion that there was indeed some interest in the performance of doctors, which could lead to accusations by private persons. In some instances, however, it was the government that interfered. This could be the case when a law had been broken. In 1850, for example, a surgeon was accused of performing an abortion, which was illegal (and continued to be so throughout the century). ⁷¹ The medical commission gathered six volumes of files for its statement on the case to the ministry. ⁷²

Despite such activity, the medical authority was lacking the legal means to discipline doctors in the majority of cases. This is best illustrated by a case study. ⁷³ In the Prussian town of Pollitz, a thirty-four-year-old pregnant woman had gone into labour in May 1854. It turned out to be a breech birth and she was unable to deliver the baby's head. A surgeon was called and after some unsuccessful efforts to assist in delivering the baby, he pulled at the baby's legs so hard that he tore the baby's head from its body. The head was retained within the woman's body. Instead of completing the surgery, the surgeon gave the mother a laxative and left her with the assurance that the continuing contractions would expel the head. It was only due to a physician being called that the life of the mother was saved. Shortly after this incident, the surgeon moved from Prussia to Hanover, which explains why the case received special attention. In response to a Prussian enquiry, the local authorities in Hanover consulted the federal state's general medical commission. In its report, the commission suggested that the surgeon should receive a formal warning for failing to use the forceps correctly. No other disciplinary measures were advised. ⁷⁴ The Prussian authorities thought such a decision too lax, and applied for a second opinion, inviting their own (regional) medical commission to supply a statement. ⁷⁵ In accordance with their ministry, the Prussian medical commission argued that the surgeon's licence should be withdrawn. As their report stated, the surgeon had not only shown insufficient skill, but far more importantly, his behaviour showed disregard for the scientific standards of gynaecological care.

The commission particularly criticised the fact that the surgeon had shifted some of the blame on to the attending midwife. In his defending statement, the surgeon argued that the latter had already damaged the spine of the unborn baby before he arrived. However, the Prussian commission wrote that there existed no possibility for any doctor (surgeon or physician) to delegate responsibility (and hence accountability) to some other (subordinate) person. ⁷⁶ The surgeon was responsible for the accident. If the midwife had caused damage to the spine, the doctor should have shown even greater attention in treating baby and mother. The surgeon was also criticised for leaving his patient unattended for more than eighteen hours. The surgeon's fatigue and exhaustion (a point he had referred to in his defence) would not suffice as an excuse for the failure in treatment. Instead, the commission argued that the surgeon's behaviour should be regarded as serious professional misconduct and be punished accordingly.

In response to the second statement, the Prussian ministry banned the surgeon from practising in Prussia. ⁷⁷ Despite Prussian protest, he was allowed to continue working as a surgeon in Hanover. With regard to medical jurisdiction, a closer look thus seems necessary. The Prussian ministry disallowed the licensing of the surgeon in Prussia. Should he ever want to return to his former workplace, no Prussian ministry would grant a licence. The Hanoverian commission discussed the jurisdictional options open to its own authorities. ⁷⁸ Although the baby had died, the mother survived. As a request by the ministry to a Hanoverian court confirmed, such a case would not count as a criminal offence. There was no reason for a police investigation, either. Hence, according to the existing legislation, a withdrawal of the granted licence was not justified. The surgeon was not under the government's direct disciplinary jurisdiction. Only surgeons (or physicians) in public offices would fall under government disciplinary control. ⁷⁹ The medical commission, on the other hand, did not possess the authority to punish the surgeon. Instead, a formal warning was the maximum penalty it could issue. ⁸⁰

As to medical negligence, the case demonstrates the intensity with which the state – in collaboration with the medical experts of the medical commissions – discussed medical legislation and the limits of possible disciplinary action. In another case, in which a doctor refused to look after a patient, the commission stated that the licence could not be withdrawn. Again, no criminal offence existed that would legitimate the withdrawal of the licence. Instead, the medical commission suggested that the government should issue additional licences to doctors within the district: an increase in competition as a form of punishment. ⁸¹ In a further case, a doctor had lost his licence because he had spent time in a penitentiary. The medical commission raised some doubts as to whether the medical police's withdrawal of the licence on such grounds (which had nothing to do with medical practice) was lawful. ⁸² The medical commission's reports confirm that the Hanoverian government debated the shortcomings of existing medical jurisdiction.

To clarify: it is not sufficient to describe the process of medico-legal reform as the rise of state control. Instead, a more complex transition occurred in which the state and medical profession collaborated and negotiated optional changes. It was the lack of coercive means that caused disciplinary professional courts to be introduced in the German states from 1864 onwards. In order to fully understand the difficulties in establishing these courts, we must consider Germany's federal tradition. German doctors became part of a national organisation (Deutscher Ärztevereinsbund) in the early 1870s. ⁸³ Legislation concerning doctors, however, was not negotiated on a national level. Neither the German Confederation (post-1815) nor the German Empire (post-1871) passed national laws on medical jurisdiction. ⁸⁴ Instead, the (at times more than thirty) federal states oversaw medical societies, medical boards, and professional courts individually. ⁸⁵ The early medical societies founded in the German federal states of Baden, Brunswick, and Saxony in the 1860s, for example, included disciplinary bodies with the right to issue fines. ⁸⁶ In Prussia, negligence was treated as a civil or criminal offence until the end of the nineteenth century. It was not until 1899 that the Prussian government introduced medical courts of honour. ⁸⁷ In Bavaria, medical chambers with some disciplinary control were established in 1871, but professional courts were not introduced until 1927. ⁸⁸ In institutional terms, German medical jurisdiction remained diverse and heterogeneous.

The introduction of medical courts of honour led to a more systematic approach to medical negligence. From 1903, the Prussian medical authorities compiled statistical data on court cases. The historian Andreas-Holger Maehle has examined the files for the period between 1903 and 1921. ⁸⁹ His results for doctors in Prussia are revealing with regard to the specific character of the medical courts of honour. In the majority of cases, and this represents a central argument in Maehle's analysis, it was not the patient who sued the doctor. Instead, the largest number of trials involved conflicts within the profession itself, brought against individuals by their colleagues and peers. ⁹⁰ With regard to the registered offences, medical negligence proved the exception. Most complaints (in Maehle's case study of the medical court of honour for Brandenburg and Berlin between 1903 and 1920) concerned issues like advertising, financial misconduct, slander or libel, and sexual offences. ⁹¹ Unfair competition or lack of collegiality could also be found amongst the reasons for disciplinary punishment. ⁹² A much smaller number of accusations referred to issues that would nowadays be considered medical negligence. False certifying, negligent certifying, and maltreatment do not rank high in the court's statistics. ⁹³ Hence, the main argument in Maehle's publication is that medical courts of honour were introduced to discipline doctors and to ensure the coherence of the medical profession, rather than to improve patient safety. ⁹⁴

By 1900, the overwhelming majority of cases of medical misconduct would be treated by a professional disciplinary court. Criminal court cases proved the exception. Instead, national organisation and professional institutionalisation of doctors had increased throughout the century. Medical courts of honour existed exclusively on the level of federal jurisdiction with differences between the federal German states. Honour and habitus appear as the key to understanding medical courts in Germany. With regard to the time-gap that existed between the early court cases of medical negligence and the introduction of the professional courts, it appears noteworthy that medical commissions had already provided scientific medical advice since the beginning of the nineteenth century. However, they did so without any disciplinary authority. Questions of medical misconduct were more prominent in the commissions’ cases than in Maehle's case study. More importantly, the period from 1810 to 1900 showed representatives of the state (in our case study from Hanover) pointing towards the limits of medical jurisdiction. The intensifying debate about the shortcomings of the existing legislation and the introduction of disciplinary courts are an indicator of such change. However, the result of such involvement led to professional courts with a high degree of autonomy. The overwhelming majority of cases of medical negligence would not be considered by a legally trained judge but by representatives of the profession itself. Professional autonomy went so far that the legal historian Peter Collin has described medical courts of honour as resulting in multinormativity in a mononormative legal order. ⁹⁵ With regard to the question of professional accountability and modernity, medical experts did not argue in favour of a no-fault compensation scheme. Instead, they insisted on sole responsibility based on expertise. They themselves were to judge their colleagues in the profession. But who was to pay for fines and penalties?

Commodifying risk: a German case study in international perspective

As the example of medical negligence in nineteenth-century Germany has amply demonstrated, the social and legal status of the expert is best understood as the result of a process of negotiation – a process that can hardly be regarded as uniform, and knows several stages and multiple agents. Negotiating accountability could be an international enterprise. German efforts to establish disciplinary courts were inspired by similar institutions in Britain. The foundation of the General Medical Council in 1858 introduced mechanisms for disciplining practitioners for misconduct and negligence. ⁹⁶ With regard to the difficulties in translating leading scientific research into medical practice, German authors also referred to their British colleagues. The British medical directory of 1881 had laid down that in considering medical conduct a doctor was not expected ‘to use the highest possible degree of skill’ when treating a patient. ⁹⁷ Instead, he was expected ‘to bring a fair, reasonable, and competent degree of skill’. ⁹⁸ The majority of medical authors in Germany agreed with the British approach and stipulated in accordance that each case of medical negligence required due consideration of individual circumstances such as the availability of equipment. ⁹⁹

There were also substantial differences in medical legislation between European nation states. German doctors longed for state recognition to a much larger degree than their British colleagues, emphasising doctors’ special status in comparison to other professions. ¹⁰⁰ The most peculiar differences can be noted between German and Austrian legislation. The Austrian criminal code of 1852 stated that doctors who had caused ‘severe bodily harm’ to a patient under their care were banned from practising only until passing an additional exam to justify the renewal of their medical licence. As very few doctors failed such a test, legal historiography treats this section of the criminal code under the heading of ‘doctors’ privilege’ (Ärzteprivileg). ¹⁰¹ Unlike their German colleagues, Austrian doctors did not face legal prosecution in cases of negligence.

This difference in legislation reminds us that questions of accountability were a matter of negotiation between state authorities and professional representatives. From the perspective of medical jurisdiction in Germany, the individual accountability of doctors remained of great importance. The court cases explicitly stress doctors’ responsibility for the content and performance of medical therapy. The concept of the employer's (or in the case of German doctors, the state's) strict liability (Gefährdungshaftung) was never introduced into the medical profession. ¹⁰² The idea of reduced accountability due to a special privilege, as in the Austrian case, did not come up. The prominence of personal honour in medical jurisdiction reinforced the idea of individual accountability with all its consequences. Few doubts appear to have existed in the public mind that German doctors remained legally accountable for the results of their treatment. ¹⁰³ Instead, such responsibility, the sophistication of medical knowledge (i.e. expertise) and the complexity of medical therapy were used to legitimise status and privilege.

There exists, however, an important reservation to the idea of full individual accountability. As a closer look at the private insurance sector demonstrates, professionals, including doctors, could rely on private liability insurances minimalising the practical consequences of individual accountability from around 1880 onwards. The German government passed a law on liability (Reichshaftpflichtgesetz) in 1871 that laid down under what conditions compensation had to be paid in railway industries. Questions of accountability were further defined with the introduction of employers’ strict liability as part of the German law on social insurance of 1884. Only three years later, in 1887, the first private liability insurance for doctors was advertised, covering costs for fines issued for medical negligence. Although liability insurance for doctors was criticised in public discourse, 6,500 doctors had signed up for this kind of insurance with the largest German insurance house (the Stuttgarter Versicherungsverein) by 1901. ¹⁰⁴ A glance at the numbers of liability policies for all professions in the Stuttgarter insurance company overall supports such an interpretation. It rose from 41,000 in 1892 to almost 270,000 in 1900. The price for individual policies had to be renegotiated several times, sometimes doubling in consecutive years. This was due to the doubling of liability cases from 1889 to 1898. ¹⁰⁵ The majority of workplaces saw an increase in reported accidents. In this sense, the emergence of private liability insurance for doctors can be seen as a complementary development to the emergence of the welfare state. Accidents in the workplace were increasingly covered by insurance for wage labour (by the state) and the professions (privately) alike.

Although this chapter has been concerned with demonstrating the importance of doctors’ legal accountability in negligence cases (and hence contests Ewald's claim of collective accountability in modernity), with some caveats Ewald's interpretation can help us to understand the transformation of medical jurisdiction. While doctors remained accountable in legal terms, they benefitted from the commodification of risk. ¹⁰⁶ The German phrase Verantwortung embraces two very distinct meanings. On the one hand, it can describe the ‘authority’, ‘command’, or ‘entitlement’ of a person, in German legal terms ‘ex ante responsibility’. On the other hand, the German phrase can equally be translated as ‘accountability’ or ‘liability’, the German legal expression of ‘ex post responsibility’. Although German doctors were legally accountable for negligence and malpractice, the private insurance business collectivised the potential danger of being economically liable. ¹⁰⁷ With reference to the discussion of risk it is stipulated that it was less the rise of the state as manager of risks that constituted modernity than the disentanglement of professional accountability and private/personal risk. In opposition to Ewald, this chapter has demonstrated that the latter did not replace the former. Instead, the two interacted within different spheres – such as the legal, the professional, and the economical.