Alexa

November Monthly Special 2022

A lawyer with a Ph.D. in theoretical medicine is a rare combination: This is what makes B. J. Fehn (of FEHN Legal) an outstanding medical lawyer

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“If he himself knows something about medicine, it will be quite good for the defendant.”

Bernd Josef Fehn, J.D., Ph.D., Ph.D. earned his second research doctorate degree in theoretical medicine, after he got the first one in law, making him one of the few prominent medical lawyers who can speak the same language as the physicians, dentists, veterinarians, hospitals, and biotechnology companies. In addition to his outstanding legal knowledge, Dr. Fehn benefits from having conducted research in the medical field himself, namely on infection risks of allografts and xenografts in oral and maxillofacial surgery and their implications for the necessary patient education. For the purpose of establishing legal certainty for practitioners, he has developed a corresponding clarification form. He is also author of medical and medical law articles in several renowned professional journals. The Ph.D. in theoretical medicine was awarded magna cum laude, so practitioners are in good hands with Dr. Fehn.

Whereas the clients bear a high responsibility for the well-being of their patients, medical lawyers like Dr. Fehn carry the responsibility for their client’s rights with enforcement and endurance. Wide-ranging decisions, especially in cases of alleged malpractice, are necessary because far-reaching consequences for the economic existence of the practitioner are to be feared.

Furthermore, this is a work area where Dr. Fehn must be able to move with empathy, since it is not uncommon for medical law cases to involve tragedies that leave behind a dead or injured person, a victim's family, and a traumatized professional. Precisely for this reason, in addition, the successful medical lawyer must anticipate the next steps with foresight prompting others to react and must have the ability to concentrate fully on one thing at the right time, too. Not only but especially in the trial, his focus must be solely and only on the interests of the client, on the proceedings and on the contents of the file.

A lack of concentration leads to a sub-optimal process action, an overlooking of an important detail in the file or a motion that won’t be made. After a failure, it would come to the so-called analytical paralysis, i.e., being busy with an ex-post analysis or an ex-ante avoidance strategy. In doing so, one would forget that there are still other tasks lying ahead. The focus would therefore be only in the failure, which would lead to a loss of clarity. The analyses must take place earlier and later: at the beginning of the mandate, during the mandate, before a trial and after each trial day.

In addition, every human thought has an effect on the body language and body posture triggering reactions of the counterpart. Self-assurance by extensive academic training and decades of professional experience leads to positive reactions for the clients on the other side, no matter whether it is a damaged party, judge, prosecutor or civil servant.

The Silicon Review reached out to Dr. Fehn and here’s what he had to say.

Interview Highlights

Q. Dr. Fehn, you went back to university in your mid-50s to start a doctoral program in theoretical medicine. What fascinates you about medicine?

I always wanted to be a physician or a lawyer. That's how I got a part in medicine. Keeping the human body and soul healthy is a mammoth task that physicians devote themselves to. But unfortunately, to err is human and mistakes happen, although of course, they should not. This is where the medical lawyer comes into play. If he himself knows something about medicine, it will be quite good for the defendant.

Q. Which case has particularly shaken you, Dr. Fehn?

Take the case of a surgeon before the district court whose supposed anesthesia nurse, just a medical secretary, after all, who was not trained in this, connected the tubes incorrectly so that the young patient died during a routine operation on his knee joint. The physician did not control the ports, because it had been common practice in this clinic to rely on the anesthesia nurse who, however, without the knowledge of the doctor, was not on the spot at all. This case left only losers behind: the boy is dead, the parents are in despair, the medical secretary has become psychologically ill as a result of the death case, and the normally very reliable surgeon, whom the case also shook heavily, is faced with the shards of his professional existence.

Q. Dr. Fehn, what criminal offenses can a physician be guilty of in Germany?

To name just a few, first and foremost, of course, there will be crimes of negligent personal injury and negligent homicide, if malpractice suspect aspects are involved. I would also like to point out cases of billing fraud, violation of medical secrecy and other data protection acts, and tax evasion, if business tax-exempt income from medical activity is “infected” by taxable business. This will be the case, if the doctor additionally offers services or sells goods inside a taxable business, and, thus, business operations must totally be affirmed in this way. Then the business tax-exempt medical activity also becomes taxable to this extent.

Q. What other areas do FEHN Legal's medical law cases come from, Dr. Fehn?

Primarily, it is about litigation before the professional, administrative and social courts, as well as defending compensation claims, preparation and implementation of practice sales, and medical device law issues. These are further important fields of our activity in the sector of medical law.

Q. Dr. Fehn, would you want to trade in your black lawyer's robe for a white doctor's coat today, if you were a physician, too?

First of all, I have to explain that I am not a physician. My research doctorate in theoretical medicine is not to be equated with having studied medicine. This Ph.D., my second one, is called doctor rerum medicinalium, not doctor medicinalis in Latin. It is not built on what you call a Medical Doctor or M.D., just as I am really a Juridical Doctor or J.D., having been awarded with a diploma by the University of Cologne. In Germany, you call it graduate lawyer. So the University of Cologne consequently awarded me the first Ph.D. after my research doctorate in law, which I studied first.

Since law is a science subject, which is useful and necessary to support the medical subject, the medical profession calls it auxiliary science, some universities – just like the Witten/Herdecke University – allow qualified lawyers and other scientists to conduct research in medical issues without having studied medicine before. Here, you have to draw a bow from a scientific medical question to the subject you have studied, in my case law, during doctoral studies in the fields of medicine and the own auxiliary science. Thus, I was just an auxiliary scientist (laughs).

To finally answer your question, I wouldn't want to be an assistant physician or senior physician in a clinical hierarchy today. And even as a chief physician, you also have other tasks that I wouldn't necessarily want to be involved in. Since the same applies to the judiciary, public prosecution and public administration, I left the civil service in 2015 as a senior official.In 2016, I realized the advantages of a freelance profession for me. So if anything, I would have been a practicing physician. However, I am very happy to do forensic work as an attorney. I enjoy to help my clients to the best of my ability. Assuming responsibility for the legal interests of our physicians, dentists, veterinarians, pharmacists, clinics, and biotechnology companies is demanding and fulfilling. I really like to work with them. I don‘t need a white doctor’s coat for this (laughs).

“I always wanted to be a physician or a lawyer. That's how I got a part in medicine.”

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