Hospital may need to comply with increased hygiene standards

BGH clarifies "burden of proof" in alleged hygiene errors
Rügen patients insufficient hygiene in the hospital, they must prove this. However, if they point out particular risks, the hospital must demonstrate that it has complied with the associated hygiene standards, as the Federal Court of Justice (BGH) in Karlsruhe ruled in a recent decision of 16 August 2016 (Ref .: VI ZR 634/15 ).

(Image: Kzenon / fotolia.com)

In this particular case, the then 36-year-old patient in Lower Saxony had been operated on because of a so-called tennis elbow on the elbow. The wound was inflamed several times and reopened three times in follow-up operations. Final success did not bring that: The patient suffers today to movement restrictions and pain.

For this he makes a hygiene error of the hospital responsible. He was in the room with another patient who had an infected knee injury. The wound was not healed, because the doctors apparently "did not get the germ right".

With his complaint, the patient said the hospital must prove that there was no hygiene problem.

According to the Federal Court of Justice (BGH), there are "fully controllable risks" in which the hospital or the doctor's office always has to explain that there were no mistakes. Conversely, there are risks associated with the "uncertainties of the human organism". Because, therefore, an error-free treatment in individual cases can be unsuccessful, here lies the burden of proof for errors in the patient.

With its new resolution, the BGH has now made it clear that hospital hygiene is only part of the "fully controllable risks". This applies, for example, to the purity of the disinfectants used, the sterility of infusion fluids or the transmission of germs by the hospital staff. "All these cases have in common that objectively there is a danger whose source is determined in each case and therefore can be excluded with certainty."

In the case of "unexplained source of infection", on the other hand, the burden of proof initially lies with the patient. In this particular case, it is about a germ that can be found in every human being. He could therefore also come from the patient himself or from a visitor.

However, here the patient referred to his room neighbor with a non-healing wound. An expert had stated that he would not place anyone with an open wound on such a patient, but that, according to current recommendations, this would be allowed if he complied with increased hygiene standards.

According to the Karlsruhe resolution, these findings of the expert turn the "burden of presentation" again (so-called secondary burden of presentation). It is now up to the hospital to state that it has complied with these increased hygiene standards. In the specific case, this will now be examined by the Higher Regional Court (OLG) Celle. mwo / fle