OLG Hamm: gross treatment errors with serious consequences
Due to paraplegia as a result of several treatment errors, the Higher Regional Court (OLG) Hamm awarded a patient pain and suffering allowance of 400,000 euros. This amount, which is quite high for Germany, is justified because of the "serious health consequences", the OLG ruled in a judgment announced on Thursday, February 2, 2017 (file number: 26 U 111/15). After that, a major intervention without a confirmed diagnosis can in itself be a gross treatment error.
The 57-year-old patient from Oberhausen was a nurse by profession. She had suffered from back pain for years, mainly in the lumbar spine.
At the end of 2008 she was examined in a hospital in Wickede. The doctors recommended an operation of the cervical spine, specifically a stiffening connection of several vertebrae and the implantation of an intervertebral disc prosthesis.
Immediately after the operation, the woman suffered from increasing weakness in both arms and legs. Follow-up surgery was also unable to prevent paraplegia from developing below the third cervical vertebra. Since then, the former nurse has been dependent on a wheelchair and outside help.
With her lawsuit, the woman asked for pain and suffering in the amount of 400,000 euros. The operation was not reported and was also carried out incorrectly.
Like the Arnsberg District Court before, the Hamm Regional Court (OLG) now awarded the amount requested. Both courts were based on the assessment of an expert.
After that, the possibilities of further "conservative treatment" without surgery had not been sufficiently examined. In any case, however, the serious intervention should not have been carried out without an MRI scan (magnetic resonance imaging) to ensure the diagnosis on which the operation was based.
The method of operation was also wrong. In this way, no more than three vertebrae should have been stiffened - and certainly not in the immediate vicinity of the intervertebral disc prosthesis.
Overall, the OLG Hamm assessed the treatment as "grossly faulty". That even applies to the omission of the MRI examination.
In the case of gross treatment errors, it can be assumed that these are also the cause, here paraplegia. This could not invalidate the hospital, according to the OLG Hamm in its now final and already published judgment of November 11, 2016.
The awarded compensation for pain and suffering of 400,000 euros is quite high for German standards. For the loss of both kidneys, the OLG Hamm had awarded a young person a compensation of EUR 200,000 (judgment of July 3, 2015, file number: 26 U 104/14; JurAgentur announcement of August 19, 2015). For the loss of function of the left shoulder, a 47-year-old woman received 50,000 euros (judgment of the OLG Hamm of July 1, 2014, ref .: 26 U 4/13; JurAgentur announcement of September 1, 2014).
A manager from Bavaria received compensation of five million euros in 2006, who became a vigilante patient after an unsuccessful operation. However, the record-breaking amount was not judged by a court, but was agreed in a settlement. In addition, the amount not only includes compensation for pain and suffering, but also compensation for material damage, in particular loss of earnings. According to his lawyer, the manager's six-digit annual salary was particularly high. mwo / fle