For multiple insurance, insurers have to argue among themselves

BGH protects policyholders against recourse

If the coverage areas of several insurance companies overlap, the insurers must make this distinction. Instead, they can not hold the policyholder liable, as the Federal Court of Justice (BGH) in Karlsruhe ruled in a leading decision published on 11 May 2018 (ref .: VI ZR 151/17). It thus dismissed the claim of an insurer against a doctor who was insured for his activities in private practice and as a fee doctor in a hospital at various companies.

The hospital in Saxony-Anhalt has a contract with Ergo Versicherung AG, which explicitly includes the activities of the fee-based doctors. For his practiced practice, the neurosurgeon has taken out his own insurance with another insurer.

In 2010, the doctor advised a patient in his practice with persistent back pain to partial stiffening of the spine with so-called PLIF cages; these are hard "baskets" that are placed between two vertebrae instead of the intervertebral disc. The neurosurgeon also conducted the reconnaissance session in his practice, and he then performed the surgery himself at the hospital.

Two days after the operation, there was a shift in the cages used in the area of ​​the lumbar spine. First attempts by the neurosurgeon and then another clinic to remedy this through further surgery, were unsuccessful.

Because of the ongoing complaints, the patient moved to the arbitration board of the State Medical Association. There, experts came to the conclusion that the operation was not indicated or at best one of several treatment options. In addition, the neurosurgeon did not carry out the original operation and the first attempt at corrective action properly.

The Ergo insurance and the patient agreed before the arbitration board on a settlement in the amount of 170,000 euros. In addition, the Ergo reimbursed the health insurance paid fees in the amount of 24,500 euros. In its claim against the doctor, the insurance company demands a refund of half of the compensation paid.

This request was rejected by the BGH. Admittedly, in case of a mistake in the hospital, the doctor and the hospital bearer were each in principle half-responsible. Here, however, errors of the physician were expressly covered by the insurance concluded with Ergo.

Insofar as it concerns possible mistakes of the neurosurgeon in his established practice, there is "a case of multiple insurance". Because even here a faulty diagnosis or inadequate education could lead to full liability of the doctor.

Both insurance companies therefore have an "identical risk", namely the risk of claims for damages by patients. Unless otherwise expressly agreed, in such cases "the internal settlement between the insurers" takes precedence over a recourse against the insured person, here against the doctor, the BGH ruled.

According to the judgment of 13 March 2018, which has now been published in writing, Ergo Versicherung must therefore turn its claims against the doctor instead of its practice insurance. mwo / fle