BGH: Treatment must be based on the "medical standard"

BGH: Treatment must be based on the


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Karlsruhe (jur). A treatment error therefore does not only exist if an omitted examination or treatment was “imperative”, according to a decision of the Federal Court of Justice (BGH) in Karlsruhe published on Tuesday, February 9, 2016 (file number: VI ZR 67 / 15).

Afterwards, a woman from Lower Saxony has the prospect of compensation for the death of her husband. After a heart attack in the back, the man had a bypass in 1995. In 2003, a “moderate” insufficiency of two heart valves was diagnosed, but the man also suffered from various other diseases, such as high blood pressure, lipid metabolism disorders, chronic bronchitis and liver damage.

In 2007 the man visited his doctor several times due to various complaints. Water was sucked out of his lungs twice. On March 14, 2008, the resident doctor referred the man to a hospital on suspicion of intestinal obstruction. There he was initially treated with antibiotics for inflammation, and his heart was examined in early April 2008. It turned out that the access to his bypass was blocked, so that another operation was necessary. The man was first discharged home and went to a specialist clinic on April 8, 2008. The planned operation did not take place there: The man died on April 10, 2008.

His widow now claims that the doctors should have had the cardiac catheterization much earlier. Instead of sending him home again, her husband should have been referred to the specialist clinic from the local hospital immediately. A massive pent-up jugular vein indicated problems with the heart valves early on.

The district court of Stade and the higher regional court (OLG) Celle dismissed the lawsuit. The cardiac catheter examination had not previously been "imperative". The private appraiser provided by the wife did not explicitly refer to the pent-up jugular vein.

However, the BGH now emphasized that the plaintiff and her lawyer had indicated this. That was enough, and the lower courts should have followed up. The woman does not have to prove her arguments in advance.

In addition, "the refraining from a medical measure is not only incorrect when the measure is 'mandatory', but already when it is not in line with the medical standard existing at the time of treatment", is the second guiding principle of the Karlsruhe decision.

With its decision of December 22, 2015, which has now been published in writing, the BGH therefore referred the dispute back to the OLG Celle for review. mwo / fle

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Comments:

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