Ophthalmologist does not have to reimburse blindness after treatment errors

OLG Hamm: Damages and blind money have different goals
Hamm (jur). After a faulty eye treatment, the doctor may have to pay the patient damages, but not also the respective competent authorities to reimburse the paid by them Landes-Blindengeld. This was decided by the Higher Regional Court (OLG) Hamm in a recently published ruling of 9 September 20 2016 (Ref .: 26 U 14/16). The dispute is now pending at the Federal Court (BGH) in Karlsruhe.

In the specific case, the patient was treated in 2006 and 2007 by an ophthalmologist in Recklinghausen because of eye pain and dark eyesight. Although the symptoms persisted, the doctor did not check the patient for the cataract. It was not until the end of 2007 that another ophthalmologist diagnosed the green star at an advanced stage in both eyes.

(Image: BillionPhotos.com/fotolia.com)

The patient is nearly blind today. As in some other states in North Rhine-Westphalia, there is a Landes-Blindengeld. Responsible here was the Landschaftsverband Westfalen-Lippe. This pays the patient blind money since the beginning of 2009.

Based on a grossly incorrect treatment by the ophthalmologist paid his liability insurance to the patient compensation in the amount of 475,000 euros.

With his lawsuit, the district association demands that the ophthalmologist or his insurance company reimburse the blind money he paid - for 2009 alone, 30,000 euros.

The OLG Hamm dismissed this action now. A reimbursement of social benefits is only possible in cases of liability if the social benefit has the same purpose as the patient's claim for damages. This is not the case here.

The blind money - and also a corresponding benefit for the deaf - will be paid flat rate, regardless of income and assets. It should alleviate the disadvantages of disability, enable participation in the life of society and facilitate a self-determined and self-determined life as well as avoid or at least reduce the need for care.

The performance is calculated abstractly. You do not claim to cover any additional expenses. On the other hand, the claim for damages under civil law "is based solely on the actual additional demand caused by blindness".

If the liability insurance must also reimburse the blind money, they could also count this on their compensation payments. This would make the blind worse.

According to the laws in North Rhine-Westphalia, however, a double compensation would be ruled out, because the regional association could count on compensation payments paid for the additional costs for additional expenses, the OLG emphasized. The regional association has appealed against this ruling to the BGH (there: VI ZR 454/16). mwo