Medical error: Uniform claim for pain and suffering in the event of a faulty operation

Medical error: Uniform claim for pain and suffering in the event of a faulty operation

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BGH clarifies liability and evidence in the event of several errors
If there are several treatment errors during an operation or if patients make at least several errors, this cannot be split up legally in the event of a dispute. The patient can only make a uniform claim for pain and suffering, as the Federal Court of Justice (BGH) in Karlsruhe decided in a judgment published on Wednesday, May 24, 2017 (file number: VI ZR 605/15). Conversely, he does not have to be able to attribute the claimed damage to a specific error.

The complaining patient had first seen her gynecologist because of abdominal discomfort. He found an ultrasound cyst in the area of ​​the left fallopian tube and referred it to a clinic. In August 2009, an attempt was made to remove the cyst laparoscopically, i.e. with instruments inserted through the abdominal wall.

The doctors found that there was adhesions in the entire abdomen due to a high degree of inflammation. These were also partially removed, which injured the small intestine in two places. A specialist was brought in to treat the internal wounds. In addition, the doctors came to the conclusion that the right fallopian tube should also be removed because of a bacterial infection. Because the patient had not been informed about this, this was not done.

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

With her lawsuit, she claimed damages and compensation for pain and suffering of initially 38,000, most recently 8,000 euros. The adhesions were removed incorrectly and the small intestine injuries were sewn too tight, which led to the closure. In addition, the defective right fallopian tube should have been removed to prevent risky fallopian tube pregnancies.

In the lower court, the Higher Regional Court (OLG) Naumburg said that the complaint regarding the right fallopian tube was insufficiently justified. Otherwise it is unfounded. An expert had confirmed to the doctors a procedure that was sometimes unusual, but justified in the specific case.

According to the report, the doctor incorrectly failed to check its permeability after the intestinal wounds had been treated. However, the patient did not prove that the intestine was actually closed by the suture and that this could have been determined during a check.

With its judgment of 14 March 2017, which has now been published in writing, the BGH overturned the OLG decision. Because the operation and its immediate follow-up treatment constituted "a single subject of dispute that encompassed all treatment errors". The required compensation for pain and suffering cannot be divided up and allocated proportionately to the individual alleged errors.

Overall, the patient asked for an adequate compensation for pain and suffering. Even if she had primarily focused on the fallopian tube that was not removed, this claim must be examined uniformly according to the Karlsruhe judgment. In doing so, the courts must assume that patients only adopt errors identified by the expert as their own complaint.

According to these provisions, the OLG Naumburg should now re-examine the lawsuit. The patient will be able to rely on a so-called reversal of the burden of proof in the absence of an examination of the intestinal permeability. Thereafter, in the event of a treatment error, it is not the patient who has to prove the resulting damage to health, but, conversely, the hospital that the error has not had any disadvantageous consequences. mwo

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