Application to arbitration board of the medical association inhibits prescription

BGH: agreement of the doctor or his insurance not necessary
Karlsruhe (jur). If patients call the conciliation office of a medical association for alleged mistreatment, the statute of limitations is initially inhibited. For this, it is not necessary that the doctor or his liability insurance, the arbitration agrees, as the Federal Court of Justice (BGH) in Karlsruhe in a judgment published on Monday, February 13, 2017 decided (Az .: VI ZR 239/15).

In the dispute, an orthopedist had not recognized a borreliosis triggered by a tick bite. The infection therefore triggered arthritis in almost all body joints.

(Image: auremar / fotolia.com)

The patient decided late to claim damages. Corresponding claims would be barred at the end of 2011. Shortly before, on December 22, 2011, the patient called the arbitration board of the Northern German Medical Association.

In February 2012, the orthopedist agreed to mediation. His insurance was, however, transversely: The doctor had agreed to the mediation until after the statute of limitations; possible claims are therefore barred.

District Court Erfurt and Higher Regional Court (OLG) Jena were still followed. The assertion of claims by a non-governmental arbitration board, according to the law, limits the limitation period only if the proceedings are conducted "in agreement with the defendant".

However, with its ruling of January 17, 2017, published in writing, the Federal Court of Justice has now overturned the decisions of the lower courts. The statute of limitation had been inhibited, the dispute therefore not statute barred. Therefore, the OLG should now examine the claims for damages.

As justification, the judges of Karlsruhe referred to another legal provision. Thereafter, the consensus is "irrefutably suspected" at a consumer arbitration board or a "branch-related other place of work".

According to the Karlsruhe judgment, this is also applicable to the limitation of limitation by applications to the conciliation boards of the medical associations. On the approval of the doctor or even his insurance is not important. "This shall also apply if an arbitration procedure under the Rules of Procedure of the respective arbitration board is only carried out if the doctor and the liability insurer agree to carry out the procedure."

If mediation fails, patients will have another six months and ten days to file a lawsuit. The day on which the failure is reported, not counting, said the BGH. Here, on 13 April 2012, the Conciliation Body informed them of the termination of the procedure; on October 23, 2012 - and thus just in time - the lawsuit was received. mwo / fle