Female doctor is not liable for incorrect report on child abuse

OLG Koblenz: compensation can be demanded by the youth welfare office
(Jur). If a child is housed in a foster family for a grossly flawed report on a supposedly suffered child maltreatment, the expert need not pay any compensation. The expert does not have to be personally liable for the erroneous report, but rather the district as a carrier of the youth welfare office, which has commissioned the woman judged on Friday, March 18, 2016, the Higher Regional Court (OLG) Koblenz (Az .: 1 U 832/15).
Background of the dispute was the suspicion of the Youth Office, that in two infants child abuse could be present. The children live with their parents in the Palatinate. The authority had commissioned a lawyer of the University of Mainz to provide an opinion. For this she received medical records of the children.

Picture: pegbes - fotolia

In her opinion of 23 May 2013, the forensic physician concluded that a child was very likely the victim of one or more shaking traumas. This would indicate the symptoms noted. The other sibling was denied the suspicion of mistreatment.

The Youth Welfare Office therefore applied to the competent family court with reference to the report, the provisional to accommodate the children in foster care. The court came after that as well. More than half a year, the two then seven and 18-month-old children were housed in foster care.

But the parents wanted their children back. Later reports finally came to the conclusion that the abnormalities identified were the result of a hereditary disease. The children are therefore suffering from a so-called water head. The slightest shock can lead to blood clots here.

After the child abuse suspicion was cleared, the parents demanded compensation for themselves and their children from the forensic doctor and from the university hospital.

The district court of Mainz ruled that the hospital did not have to pay anything because it had not commissioned the report. However, the forensic physician can very well be asked to pay as she is personally liable for the grossly flawed and scientific standards.

But this was contradicted by the Higher Regional Court. It is true that the expert made a grossly flawed opinion and ruled out alternative causes of the children's symptoms without justification "categorically and unconditionally". However, she does not have to be personally liable for her mistakes. Claims to compensation for pain and suffering should rather be asserted against the district as the bearer of the competent youth welfare office, which commissioned the expert.

Because the youth welfare office had consulted with its guardian function over the welfare of the child the expert as an external expert and supported his petition to the family court for accommodation in a foster family on the report. The expert acted "in the exercise of a public office" in its expert opinion. In such a case, the commissioning body must adhere, but not itself. (Fle / mwo)