Verdict Chefarzt-OP must be performed by the chief physician

Federal Court of Justice: Operation by a representative for lack of consent unlawful

Karlsruhe (jur). A fixed surgery by the chief physician is actually carried out by the chief physician. For other doctors, then there is no consent of the patient, an operation by representatives is therefore unlawful, the Federal Court of Justice (BGH) in Karlsruhe ruled in a judgment published on Monday, August 15, 2016, (Az .: VI ZR 75/15) , The representative and the hospital are then liable for consequential damage even if the surgeon is not to blame.

In the decided case, misalignments of fingers on the left hand should be corrected. In advance, the patient had been examined by the chief physician. He concluded with the hospital a Wahlleistungsvertrag, after which the chief physician should also operate.

Instead, however, operated a deputy senior physician. Subsequently, the patient had problems with his hand and demanded compensation.

However, one expert noted that the surgeon was not to blame. In the lower court rejected the Koblenz Court of Appeal therefore the claim for damages. The health complaints would probably have occurred even if the chief physician had operated on his own. A real damage was therefore not incurred.

But that does not matter, the BGH now ruled. In the election contract a representation was not provided. The consent of the patient therefore only applied to surgery by the chief physician. The representative could not therefore invoke that consent and his operation was unlawful.

As a justification, the BGH pointed out that every operation means an interference with the bodily integrity. The consent was necessary to allow the doctor.

"If the patient declares in the exercise of his right to self-determination that he only wants to be operated on by a specific doctor, another doctor may not perform the procedure," the judgment in writing of July 19, 2016, published now says. do not ignore autocratic ". Through a representative, the patient must be informed in advance in time to give his consent. mwo / fle