BGH family doctor also after transfer to specialist practice in the duty

Patients need to get all the important information

Doctors need to make sure that their patients receive important information, such as a doctor's letter from a clinic. A violation can be considered a gross treatment error and justify claims for damages of the patient, as the Federal Court of Justice (BGH) in Karlsruhe ruled in a judgment published on 24 August 2018 (Ref .: VI ZR 285/17). After that, the patient information is only dispensable if it is certain that the specialist treating the patient or the patient himself has also received the information.

In the dispute, the patient had gone with pain in his left leg and foot to his long-time family doctor. She referred him to a specialist practice. A good two months later, the man had severe knee pain and went to hospital as an emergency patient. Magnetic Resonance Therapy showed an approximately one centimeter large tumor in the left popliteal fossa. This report was shared by the specialist practice hospital, but not by the family doctor.

After another three weeks, the practice transferred the patient to another hospital. There, the tumor was removed by microsurgery. A first doctor's letter went to the family doctor and to the medical practice.

Only after another two months, however, were the results of the tissue examination available. Contrary to the original assumption, then the tumor was not benign, but a malignant nerve sheath tumor. This informed the hospital in a second doctor's letter only the family doctor. The patient should be referred to an oncological specialty center. A copy of this doctor's letter did not receive the practice this time.

This only became apparent when the patient came to the family doctor's office after another year and a half because of a hand injury. Meanwhile, there had been a relapse, in the popliteal fossa, a new tumor tumor had formed.

From his family doctor, the patient demanded compensation and compensation. The doctor had to inform him about the second doctor's letter. To refrain from this was a mistake in treatment.

The Higher Regional Court (OLG) Dusseldorf dismissed the lawsuit. Even if one assumed a medical error, the patient could not prove that it was responsible for the negative further course of the disease. In addition, the family doctor was no longer involved in the treatment of the tumor.

The BGH overturned this ruling and clarified: "The defendant (family doctor) has violated her medical duties to the plaintiff because she did not inform him about the diagnosis of a malignant nerve sheath tumor and the treatment recommendations of the hospital."

This is about a "threatening finding", which gave rise to immediate further treatment. Therefore, there was a "serious medical error". Whether other doctors are to blame for omissions, it plays no role.

In such cases, doctors would need to reorder patients at short notice, demanded the Karlsruhe judges. Although here the family doctor has given the treatment to the practice. The second doctor's letter, however, was only directed to the family doctor and they were asked to send the patient to a special oncological center.

Apparently the hospital had the family doctor here as a treating doctor. Even if this was a mistake, she was not allowed to ignore the doctor's letter and "can accept with her eyesight a danger to her patient". Even after a transfer doctors meet a "protective after-duty and duty of care".

Therefore, the family doctor could not simply assume that the specialist practice or the patient himself had received the information from the hospital. Because there is no indication in the second doctor's letter. In the case of patients of many years of age, general practitioners would also have to expect that patients would name them as contact persons in the hospital.

With its judgment of 26 June 2018, now published in writing, the BGH dismissed the dispute to the OLG Dusseldorf. It is crucial that the BGH has rated the mistake of the family doctor as gross. According to settled case-law, this leads to a reversal of the burden of proof. In the renegotiation, therefore, the patient is no longer in the burden of proof. Rather, the family doctor now has to prove that even if there was immediate information about the findings, the tumor would have revived. If you can not do that, the patient can claim damages and compensation. mwo / fle