BGH refers to case law on “shock damage” after an accident
After a treatment error, clinics and doctors may also be liable for the consequences of a psychological shock that close relatives suffer because of the error. This was decided by the Federal Court of Justice (BGH) in Karlsruhe in a judgment published on Friday, June 28, 2019 (file number: VI ZR 299/17). After that, the principles for “shock damage” after an accident also apply here.
In the specific case, tumors in the intestine were also removed from a patient during a colonoscopy. The following day, an intestinal tear was found, which is why the abdomen was inflamed. Six days after the colonoscopy, the abdomen was opened and the tear was sewn.
The patient privately commissioned an expert to evaluate his treatment. In early 2014 he stated that the tear was one of the risks of a colonoscopy and was "fateful"; however, the intestine should not be sewn in an inflamed condition. An expert from the health insurance company said that the intervention was too late and was also carried out using the wrong surgical technique. With the insurance of the hospital, the man agreed on a severance payment of 90,000 euros.
His wife was very worried and said he saw her husband in peril for weeks. Because of his faulty treatment, she has massive psychological and psychosomatic complaints. She continues to suffer from sleep disorders, constant fear of bad news, recurrent nausea and panic fear of hospitals. Despite psychiatric drugs and psychotherapeutic treatment, this has not improved. She was no longer able to work and could no longer take care of her household independently.
The woman therefore demands compensation for pain and suffering from the hospital. The clinic refuses. The man was never really in mortal danger because of the treatment. There is no connection with his wife's mental problems.
District court and higher regional court (OLG) Cologne dismissed the wife's lawsuit. They said the wife may have “shock damage”. His compensation would only be considered if a close relative died.
The BGH now contradicted this. According to this, the same principles apply to incorrect medical treatment as to compensation for “shock damage” after an accident. There is no reason to "further limit the ability to replace so-called 'shock damage' in the case of medical treatment errors than in the case of accident events," says the principle of the judgment of 21 May 2019, which has now been published in writing.
Subsequent psychological damage would then have to go far beyond the usual mental impairments in the event of death or serious injury to a close relative. This is the case here.
The necessary closeness between the originally injured person and the shock victim is also given between the spouses (not, however, in the case of a fatally injured dog, according to a BGH judgment of March 20, 2012, ref .: VI ZR 114/11; JurAgentur report from 17. April 2012).
In these circumstances, it is sufficient “sufficient certainty” that the psychological damage to the wife is due to the “act of injury” to the patient, the BGH ruled. The OLG Cologne is now to check this.
According to a judgment of May 20, 2014, doctors are not liable if they inform relatives about a serious illness of the patient and thereby cause the relatives a shock (Az .: VI ZR 381/13; JurAgentur announcement from June 11, 2014) mwo
Author and source information
This text corresponds to the specifications of the medical literature, medical guidelines and current studies and has been checked by medical doctors.
- Federal Court of Justice Ref .: VI ZR 299/17