Do not ignore unclear physician summons

Federal Court of Justice examines medical liability: patient had cancer instead of vaginal fungi
Karlsruhe (jur). There are good reasons why physicians do not speak plain text in a written communication, but prefer to ask patients personally to practice. Patients should therefore not simply ignore such a request, but at least ask for the reasons, as shown by a recent judgment of the Federal Court of Justice (BGH) in Karlsruhe of April 11, 2017 (Az .: VI ZR 576/15). Conversely, if urgent, doctors should also check that the patient has complied.

In addition, interesting for lawyers: In another guideline, the BGH affirmed that courts may only split a dispute into several judgments, if it is impossible that the individual parts are legally assessed differently.

If you suspect an infection of the bone, you should lose no time and see a doctor immediately. (Image: Africa Studio / fotolia.com)

In the dispute, a then 26-year-old woman in April 2007 went to the cancer screening in a gynecological group practice. A smear revealed an unclear finding. Cervical screening therefore required further clarification. When the appropriate results were available, the patient's doctor sent a prescription for certain vaginal tablets. These are primarily used against trichomoniasis, an infestation with certain unicellulars. Here, however, the tablets should provide for a brightening of the cell image and thus for better examination results. After using the tablets, the patient should return to the office.

However, the patient only reappeared in January 2008 - because of a prescription for a contraceptive. The doctor made another smear - again with unclear findings. Again, the patient received a letter with a prescription for the vaginal tablets as well as the accompanying standard cover letter with a call for a practical visit.

When the patient came to the practice in April 2008, the doctor immediately sent her to a specialist practice for a tissue examination. It was found cancerous tissue on the cervix. As a result, the woman was operated on four times because of this.

With her complaint, the patient complains of insufficient education. The vaginal tablets were used, but it was assumed that a fungal disease. Therefore, she did not consider a further practical visit necessary. From the doctor, she demanded 30,000 euros in compensation for pain and damages for loss of earnings and treatment costs in the amount of 42,000 euros.

The Berlin Court of Appeal assumed a finding error and, with a partial judgment of the patient, awarded 15,000 euros in compensation. The claim for compensation separated it from this, because there was still further need for clarification.

As the Federal Supreme Court ruled, there is no finding error. After unspecified personal information, she had re-summoned the patient with her cover letter in order to collect the necessary further findings. Therefore, 'the mere existence of a breach of the duty to provide therapeutic advice, for example because of a failure to state the urgency of the action required, is considered'.

Therefore, the Court of Appeal Berlin is now again definitely clarify whether the cover letter a call for a new practice visit was included. If so, it should evaluate how to classify the omitted warning.

An expert had considered this "taken by itself" as faultless. However, this could then result in a duty to check whether the patient "understood the recipe and cover letter correctly and reported to further investigation." The weight of the possible illness is of particular importance, emphasizes the BGH.

In addition, the Karlsruhe judges complained of the division of the dispute by the Court of Appeal. After all, even in the dispute over compensation, the question arises as to whether the doctor should be accused of having committed a breach of duty for consequential damage. This should have the Court of Appeal therefore binding for the compensation for pain and damage claim to examine together.

Earlier, the Karlsruhe judges had ruled that an omission of urgency was not automatically a gross error; after that, it may still be considered a simple mistake if the doctor did not mediate an examination as urgent, but nevertheless as "necessary" (judgment of 17 November 2015, ref .: VI ZR 476/14, JurAgentur-Meldung vom 15. January 2016). mwo / fle