Patients and lawyers do not need to acquire medical expertise

Karlsruhe (jur). In the dispute over possible medical errors of treatment, the requirements of the statements of the patient should not be overstretched. "The patient and his representative are in particular not obliged to acquire proper medical practice for proper litigation," according to the Guidelines of a Judgment of the Federal Court of Justice (BGH) in Karlsruhe published on Thursday, March 31, 2016 (Ref .: VI ZR 49 / 15).

Judgment. Image: Sebastian Duda - fotolia

In the decisive case, a then 59-year-old woman fell three times in 2009. Several times she had surgery in two different hospitals. Among other things, an artificial hip was used. In the spring of 2010 bacteria were detected in the wound interior.

The patient complained against both clinics. The "deep infection" suggests that the hygiene standards had not been complied with in the operations. The district court Saarbrücken rejected the lawsuit.

Before the Higher Regional Court (OLG) Saarbrücken, the patient argued for the first time that in one of the operations, the so-called wound debridement was either not performed or not properly performed. This is the removal of poorly healing and often infected tissue from the surgical wound. The Higher Regional Court rejected this argument as being late. The patient would have had to bring it before the district court, said the second instance judges and rejected the lawsuit also. The OLG did not allow the revision.

The woman's complaint against this was now successful in the BGH. With their resolution of 1 March 2016, which was now published in writing, the Karlsruhe judges abolished the Saarbrücker judgment and referred the dispute concerning the second clinic back to the OLG.

In support of the decision, the BGH stated that the Higher Regional Court had spanned the requirements of the patient's statements. At any rate, wound debridement was not documented in this operation. Only a new lawyer told the patient that this could be the cause of the infection.

Under these circumstances, the OLG was not allowed to override the new argument, the BGH ruled. In the second round, the OLG Saarbrücken should now consult an expert on the question of whether possibly nevertheless a Wunddebridement made and only not documented because the documentation was perhaps not yet common then. (MWO)