Reversal of the burden of proof due to failure to undergo medical examinations

BGH: doctor in the compensation dispute but not defenseless
Karlsruhe (jur). Doctors who do not initiate the examinations required by the circumstances commit a serious "survey error". In the case of an action, this leads to a reversal of the burden of proof in favor of the patient, as the Federal Court of Justice (BGH) in Karlsruhe emphasized in a ruling published on Friday, 8 April 2016 (Ref .: VI ZR 146/14). Thereafter, however, the courts must also investigate other possible causes of damage to health.

The plaintiff suffers from the most serious health damage attributed to a shortage of oxygen during his birth. He accuses the gynecologist of his mother, he did not recognize a so-called HELLP syndrome. This is a major change in the blood count associated with liver dysfunction, with the letters HELLP representing the altered blood parameters.

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Specifically, the mother had at the end of her pregnancy increased blood pressure, massive nosebleeds and increased protein excretion in the urine. The gynecologist only diagnosed a "slight increase in blood pressure" without further investigation.

For this purpose, the Federal Court of Justice made it clear that this is not a diagnostic error, but a "finding error". The reason for the misdiagnosis was "that the doctor did not even initiate the examinations required by the medical standard". This could lead to a reversal of the burden of proof in favor of the patient if the medical omission is "with sufficient probability" the cause of later damage to health.

Such a reversal of the burden of proof applies to "gross treatment errors". Then the doctor has to prove that his mistake was not the cause of later damage to his health. If he fails to do so, the causality of the mistake is accepted in favor of the patient.

Here, the gynecologist should not have left it in the diagnosis of high blood pressure, but had to arrange further investigations, stressed the BGH. This would lead to a reversal of the burden of proof.

Nevertheless, the courts would have to raise the necessary "findings". Although the expert stated that the claimant's health could have been avoided by giving birth earlier. According to the report, the cause of the damage to health is also a subsequent brain damage as a result of an infection.

Although the gynecologist relied on this and also asked for an expert opinion, the Higher Regional Court (OLG) Munich did not pursue this further in the lower court. This is the OLG now catch up. The reversal of the burden of proof does not deprive the doctor of the opportunity to "prove otherwise", the judgment of 26 January 2016, now published in writing, states. (Mwo / fle)