Physician error Uniform claim for damages for incorrect operation

BGH clarifies liability and evidence in case of multiple errors
If several treatment errors occur during an operation or if patients make at least several errors, this can not be legally split in the case of a dispute. The patient can only assert a uniform claim for damages, as the Federal Court of Justice (BGH) in Karlsruhe ruled in a judgment published on Wednesday, May 24, 2017 (Ref .: VI ZR 605/15). On the other hand, he must not be able to attribute the alleged damage to a specific error.

The plaintiff patient had initially visited her gynecologist because of abdominal discomfort. He determined by ultrasound a cyst in the area of ​​the left fallopian tube and transferred it to a clinic. In August 2009, an attempt was made to remove the cyst laparoscopically, ie with instruments introduced through the abdominal wall.

Routine interventions carry the risk of mistakes being made by carelessness. (Image: AntonioDiaz / fotolia.com)

The doctors found that due to a high degree of inflammation in the entire abdomen adhesions were. These were also partially removed, causing the small intestine was injured in two places. A specialist was called in to look after the internal wounds. In addition, the doctors came to the conclusion that due to a bacterial attack, the right fallopian tube should actually be removed. Because the patient had not been informed about this, but omitted this.

After the operation, the patient still suffered from an intestinal obstruction.

With her lawsuit, she demanded compensation and an allowance of 38,000 initially, most recently 8,000 euros. The adhesions were incorrectly removed and the small bowel injuries were sutured too tight, which led to the closure. In addition, the inoperative right fallopian tube would have had to be removed to prevent risky ectopic pregnancies.

In the lower court said the Higher Regional Court (OLG) Naumburg, regarding the right fallopian tube, the claim was insufficiently justified. Otherwise, she was unfounded. For an expert has here the doctors confirmed a sometimes unusual, but justified in the concrete case approach.

Although, according to the expert's report, the doctor wrongly failed to check the permeability of the intestinal wounds. However, the patient had not demonstrated that the intestine was actually already closed by the suture and that this could have been determined during a check-up.

With its ruling of 14 March 2017, which was now published in writing, the BGH annulled the OLG decision. For the operation and its immediate aftercare justified "a single, all treatment errors comprehensive issue". The required compensation for pain and suffering can not be divided and proportionately attributed to each alleged error.

Overall, the patient had demanded a reasonable compensation for pain. Even though it had recently relied primarily on the non-removed fallopian tube, this claim should be examined uniformly after the Karlsruhe judgment. At the same time, the courts must assume that patients accept errors made by the appraiser as their own complaint.

According to these stipulations, the OLG Naumburg will now re-examine the lawsuit. The patient will be able to rely on a so-called reversal of the burden of proof with regard to the failure to examine the intestinal permeability. Thereafter, in case of a treatment error, the patient does not have to prove the resulting damage to health, but conversely, the hospital must prove that the error did not lead to any adverse consequences. mwo