This master thesis aims to show how a qualitative approach to early modern medical practitioners’ perspectives can provide a basis for a better understanding of the disease of dysentery. The focus is on: 1) How the disease of dysentery was described and how the challenge of dysentery was perceived. 2) What individual measure and commitments were taken for the patients and why. 3) How the cause of the disease was understood and explained. 4) How perspectives differed between physicians and surgeons.Of particular interest when it comes to the disease of dysentery is how the disease and its cause were perceived.Eleven texts written by mainly British medical practitioners from primary sources such as reports, logbooks and letters on dysentery written during the years 1740 - 1800 have been used for close readings and a qualitative analysis was performed on the collected data.The analysis showed (i) that medical practitioners expressed considerable interest in dysentery and in trying to understand it as a great suffering for individuals, for society and for humanity as a whole. (ii) Medical practitioners took treatment measures based on how they understood the cause of the disease outbreak. Either the dysentery was referred to internal causes, as sickness in organs, especially the organs that produced bodily fluids, or it was referred to external causes, as a sickness caused by heat, cold, weather, winds, air, climate, seasons, lunar position, etc. (iii) The cause of the disease was understood and explained both as an infection and as a pre-disposition for imbalances in body fluids. (iv) Both physicians and surgeons understood that the disease of dysentery was a global phenomenon and that the disease often was connected to the climate and weather. This standpoint was based on the fact that dysentery distinguished itself as an autumnal disease. Its eruption usually began with a few scattered cases in July, then increased in August and culminated in September. Theories about the disease, its causes and treatment did not differ significantly between physicians and surgeons. However, the views of different physicians did differ.The thematic map of understanding related to disease of dysentery, shows that medical practitioners’ knowledge, theories and ideas behind the medical practice of dysentery, have an ambiguity in the view of both the dysentery and the treatment of it. This was probably due to interpretation based both on observable causes of diseases, and on a more theoretical abstract meaning, where diseases to a greater extent was understood on the basis of symptoms and signs.It is suggested that regardless of the knowledge base of the individual medical practitioner, no one represented an independent knowledge base for their treatment of dysentery; rather they participated actively with each other in a mutually constitutive way in order to shape their understanding of the dysentery. This theses’ qualitative approach, allows dysentery patients and their medical practitioners via the texts of the medical practitioners, to offer very personal accounts of a highly contagious disease.

This study will demonstrate that the lay or "popular" medical practitioner played a major role in the provision of health care in seventeenth-century England. The medical "professionals" have generally been accepted as providing the most expert and "scientific" medical care (within the limits of contemporary knowledge), and, as such, have been the focus of attention for the majority of studies by medical historians. This study challenges traditional studies on the basis of geography, economic factors, religious influences and contemporary medical practices. The amorphous nature of seventeenth-century medical knowledge will be demonstrated to show the similarity between lay and professional medical treatment. To this end, female lay medical practitioners have been presented as a case study to illustrate the widespread nature and diversity of popular medicine and to assist in defining the role of the popular practitioner, a vital element within seventeenth-century health care. / Thesis / Master of Arts (MA)

Magister Legum - LLM / South Africa has seen a spike in medical malpractice litigation, including the number and size of claims instituted against healthcare practitioners. This has led to a backlog in medical malpractice court cases throughout South Africa and a strain on both the public and private healthcare sectors, affecting an already burdened healthcare system. The surge in medical malpractice litigation is not a new phenomenon in developed countries. Most have curbed this through alternative dispute resolution (ADR). This has been facilitated by effectively introducing efficient legal frameworks that promote ADR. Unfortunately, this is not the case in a developing country such as South Africa. To date, much research and literature has attributed blame for the large-scale increase in medical malpractice litigation to legal practitioners. This has been aided by comments made by the former Minister of Health, Dr Aaron Motsoaledi (Dr Motsoaledi). In as much as this may be the common perception, there appears, to the contrary, to be systematic problems in the South African healthcare system. The legal profession is only a minor contributing factor to the increase in medical malpractice litigation. The strained financial resources and shortage of healthcare staff in public hospitals contributes to the increased risk of medical malpractice cases. Furthermore, when considering the South African legal system, contingency fee arrangements have, in certain circumstances, increased vexatious litigation and, as such, it is on this basis that medical malpractice litigation has been on the increase in South African courts. This study seeks to analyse the current state of the South African healthcare system, and in light of the increasing number of medical practice claims and litigation, propose ADR mechanisms that offer efficient, cost effective, and expeditious channels to resolving these issues and to ensure that parties recognise the full benefits of ADR. This study proposes legal reform in medical malpractice litigation in South Africa. This thesis compares the experiences, legislative and policy frameworks in Australia and the United States of America (USA), in order to learn lessons that could assist South Africa in framing legislation and best practices for ADR. It contends that, in order to effectively develop and implement ADR to address medical malpractice litigation, it requires the involvement of the government, legislature, judiciary, legal profession and the public. It has identified court- iv annexed mediation as the appropriate ADR mechanism in addressing medical malpractice litigation.

Während die Bestechung und Bestechlichkeit von, in öffentlichen Krankenhäusern angestellten Ärzten, als Folge des „Herzklappenskandals“ und der darauf beruhenden Reform des Korruptionsstrafrechts bereits seit 1997 nach den §§ 331 ff. StGB strafbar sind, unterfielen niedergelassene Vertragsärzte auch nach der Rechtsprechung des Großen Strafsenats bis zum Inkrafttreten der §§ 299a ff. StGB am 04.06.2016 nicht den Korruptionsdelikten. Thematisch damit verbunden war und ist die Frage, ob Vorteilsgewährungspraktiken in diesem Bereich vom Tatbestand der Untreue erfasst sein könnten. Ihrer Beantwortung dient der erste Teil der Arbeit. Der zweite Teil fokussiert die Relevanz der Korruptionsvorschriften für das gewählte Arbeitsthema. Die Einbettung der Gesamtthematik in den Kontext der Korruptionsdelikte führt die Ausgangsbetrachtungen zur Untreue fort und ergänzt diese durch eine Bewertung nach den neuen Gesetzesregelungen. Das gewählte Arbeitsthema zeigt, wie wesentlich die Beschäftigung mit den relevanten Normen des Rechts der Gesetzlichen Krankenversicherung für die strafrechtlichen Bewertungen in diesem Bereich ist. Dies gilt umso mehr, wenn mit sozial- und beziehungsweise oder berufsrechtlichen Verstößen strafrechtliche Konsequenzen einhergehen und die fehlerhafte Anwendung der einschlägigen Rechtsnormen anderer Rechtsbereiche zwangsläufig auch zu falschen strafrechtlichen Schlussfolgerungen führt. Dieser Kritik sieht sich auch die Rechtsprechung des Bundesgerichtshofes zur sogenannten Vertragsarztuntreue ausgesetzt. Auch hier wurden die Besonderheiten des Sozialversicherungsrechts nicht mit der notwendigen Sorgfalt eruiert und stattdessen eine - seit mehreren Jahren - nicht mehr vertretene Rechtsprechung des Bundessozialgerichts zur Grundlage der strafrechtlichen Bewertungen gemacht. Dass dies weder den Anforderungen des Bundesverfassungsgerichts entspricht, noch mit den sozial- und strafrechtlichen Vorgaben vereinbar ist, zeigen die Ausführungen der Arbeit. In der Form eines kritischen Ausblicks werden abschließend, die Grenzen zulässiger verordnungsbezogener Vergütungen durch die Krankenkassen aufgezeigt und deren strafrechtliche Relevanz eingeordnet. Letzteres erfolgt am Beispiel eines Vertrags zur Förderung sog. biosimilarer Arzneimittel durch die Zahlung einer prozentualen Einsparbeteiligung als Gegenleistung für deren bevorzugte Verordnung. Die Konstellation verdeutlicht, dass auch die monetäre Einflussnahme der Krankenkassen auf das Verordnungsverhalten der Vertragsärzte strafrechtsrelevante Wirkung haben kann, wenn sie zu unberechtigten Wettbewerbsverzerrungen führt. / As a consequence of the so-called “heart valve scandal”, and the reform of the German criminal law on corruption that followed in the wake of the scandal, it has been a criminal offence under sections 331 et seqq. of the German Criminal Code [Strafgesetzbuch – StGB] since 1997 to give bribes to medical practitioners employed in public hospitals, or for such medical practitioners to take bribes. However, until sections 299a et seqq. StGB entered into force on 4 June 2016, acts committed by medical practitioners in private practices were not deemed to be corruption offences under the Criminal Code. This was also affirmed by the case-law of the Grand Criminal Panel of the German Federal Court of Justice [Großer Senat für Strafsachen]. A topic that has been repeatedly discussed in connection with the aforementioned issue is whether the practice of granting benefits in healthcare might constitute an offence of embezzlement. The first part of this dissertation provides an answer to that question. The second part focuses on the significance that corruption provisions have for the topic discussed herein. Following the initial analysis of the issue of embezzlement mentioned, this issue is expanded by a discussion of the overall topic in the context of corruption offences, supplemented by an assessment of the topic in the light of new legislation introduced. An analysis of the topic chosen for this dissertation shows how important it is to study the relevant legal provisions of the law on statutory health insurance in order to be able to carry out an assessment of the topic from the perspective of criminal law. This applies all the more so in cases where a breach of social law and/or the law of professional rules and regulations might have consequences under criminal law, and the faulty application of applicable legal rules from legal areas outside criminal law would inevitably also lead to wrong conclusions being drawn on the basis of criminal law. The case-law of the German Federal Court of Justice [Bundesgerichtshof] on so-called “embezzlement by medical practitioners in private practice” [Vertragsarztuntreue] has been criticised in this respect. The Federal Court of Justice did not take account of the specifics of German social security law in a sufficiently diligent manner, and instead used outdated case-law of the German Federal Social Court [Bundessozialgericht] as a basis for its criminal-law assessment—precedents that were overruled by the Federal Social Court itself many years ago. This dissertation shows that this does not meet the requirements of the German Federal Constitutional Court [Bundesverfassungsgericht] and that such an approach is incompatible with requirements under social and criminal law. Finally, the limits of admissible prescription-related remuneration by health insurances are discussed and demonstrated from a critical, future-oriented perspective, together with the significance these limits have from a criminal law perspective. The significance of such limits is discussed using as an example a selective-agreement model designed to promote so-called “biosimilar medicines” by paying medical practitioners a percentage of the savings achieved in return for practitioners prescribing such medicines rather than more expensive ones. The circumstances discussed illustrate that the monetary influence that health insurances exert over the way in which medical practitioners in private practice prescribe such things as medicines may have consequences under criminal law if such influence may lead to competition being distorted. In the light of the above, health insurances should not be provided with additional criminal-law-related exceptional provisions that would enable them to exert further influence over the neutrality of decision-making in the area of medical prescriptions.

The creation of the National Health Service is treated, analytically and historically, as a planning process involving major changes in the social organisation of health as a part of the larger set of social and economic reconstruction policies undertaken by the wartime Coalition and postwar Labour governments. Definitions of 'health' are considered as relative both to social expectations and ideology, and to theoretical models of the organisation of health services. These models are identified with certain socio-political agents or interests in the providing and consuming of health services: professional groups, public and private authorities, non-professional workers, and the public. The models of the health service advocates and of the medical profession are considered as reference points. A framework is presented for the analysis of the representation of these interests, by the state, in the planning and operation of the NHS, and as beneficiaries of its services. Through a detailed historical consideration of internal health service planning documents of the major interests, including the medical profession, the health service advocates representing the Labour party and trade unions, and recently released documents of the Ministry of Health and the Coalition and Labour Cabinets, the interaction of the interests with the two governments and with each other is traced, and the reconciliation by the state of the health service models proposed by them is analysed. It is argued that the changes wrought in the social organisation of health in Britain can be described according to certain principles of the organisation of pre- and post-NHS health services: principles of public access, structure of services, structure of administrative control and structure of planning representation. Tne major interests were represented differentially by the state with respect to each of these criteria; similarities and differences between the approaches of the two governments to the representation of interests are examined, and it is concluded that, although the health service advocates and the public benefited from a free and universal scheme, the public and non-professional health workers enjoyed considerably less representation than the medical profession in the particular services provided by the NHS and in its planning and administration.