Missing metal tip after operation

OLG Oldenburg: Failed follow-up is gross error

If parts of an instrument are missing after one day of surgery, the clinic or practice must order the patients operated on for a follow-up visit. If this is not the case, there is a "gross treatment error", as the Higher Regional Court (OLG) Oldenburg ruled in a judgment published on Monday, January 28, 2019 (Ref .: 5 U 102/18). After that, a doctor has to pay a compensation of 20,000 euros.

A 46-year-old man had surgery on the outpatient knee at the doctor. On the evening of the treatment day, the metal tip of the surgical instrument was missing. A search in practice was unsuccessful. Therefore, the doctor made a note in case the metal tip might have remained in a patient's body.

Four weeks later, the 46-year-old returned to the practice with severe pain. The metal tip was detected on an X-ray and then removed in another operation.

According to him, the patient has since suffered from pain during prolonged standing or medium-length footpaths. Therefore, he could only pursue his hobby of hiking in the mountains and not even pursue the hobby of volleyball. With his complaint, he demanded a "reasonable compensation money".

The district court of Osnabrück awarded the man a compensation of 12,000 euros. Both sides called the next instance: the patient wanted more, the doctor only 7,500 Euro.

The OLG increased the compensation now to 20,000 euros. Here, the consequences for the patient and also the "very significant fault of the doctor" should be considered.

The patient had suffered permanent cartilage damage, which significantly limits the "formerly very active athletic man" in his life.

Although the doctor noticed the absence of the metal tip, he initially "resigned himself to the fact that one of his patients could be seriously injured as a result". He did not inspect the bandage or the strings. Only because of the considerable pain of the man he had become active. "This justifies such a serious charge of gross negligence that to the satisfaction of the plaintiff, a significant increase in the financial compensation is required," it says in the judgment of 24 October 2018. mwo / fle