Patients and lawyers do not have to acquire medical expertise

Patients and lawyers do not have to acquire medical expertise

Karlsruhe (jur). "In particular, the patient and his legal representative are not obliged to acquire proper medical expertise in order to conduct the process properly", says the principle of a judgment of the Federal Court of Justice (BGH) in Karlsruhe published on Thursday, March 31, 2016 (ref .: VI ZR 49 / 15).

In the determined case, a woman aged 59 at the time fell three times in 2009. She was operated on several times in two different hospitals. Among other things, an artificial hip was used for her. In spring 2010, bacteria were found inside the wound.

The patient sued both clinics. The "deep infection" suggests that the hygiene standards were not met during the operations. The Saarbrücken district court dismissed the lawsuit.

For the first time, the patient argued before the Saarland Higher Regional Court (OLG) that wound debridement was not performed or was not performed properly in one of the operations. This is the removal of poorly healing and often infected tissue from the surgical wound. The OLG rejected this argument as being too late. The patient should have put it before the district court, the judges of the second instance said and also dismissed the lawsuit. The OLG did not allow the revision.

The woman's complaint against this was now successful in the BGH. With their decision of March 1, 2016, now published in writing, the Karlsruhe judges overturned the Saarbrücken ruling and referred the dispute regarding the second clinic back to the OLG.

The BGH explained that the OLG had overstretched the patient's requirements. In any case, the wound debridement was not documented in this operation. Only a new lawyer had informed the patient that this could be the cause of the infection.

In these circumstances, the Higher Regional Court was not allowed to ignore the new argument, the BGH decided. In the second round, the Saarbrücken Higher Regional Court should now consult an expert on whether wound debridement might still have been carried out and only not documented, because documentation at that time was perhaps not yet common. (mwo)

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