Missing metal tip after surgery

OLG Oldenburg: Failure to follow up is a gross mistake

If parts of an instrument are missing after a day of surgery, the clinic or practice must order the patients operated on for a follow-up examination. If this is not done, there is a "gross treatment error", as the Higher Regional Court (OLG) Oldenburg ruled in a judgment published on Monday, January 28, 2019 (Az .: 5 U 102/18). After that, a doctor has to pay pain and suffering of 20,000 euros.

A 46-year-old man had an outpatient surgery on his knee at the doctor. On the evening of the treatment day, the metal tip of the surgical instrument was missing. A search in practice was unsuccessful. Therefore, the doctor made a note in case the metal tip might have remained in a patient's body.

Four weeks later, the 46-year-old came back to the practice with severe pain. The metal tip was discovered on an X-ray and then removed during another operation.

According to him, the patient has since suffered pain from prolonged standing or medium-length footpaths. His hike in the mountains can therefore only be restricted and he can no longer pursue the hobby of volleyball. In his lawsuit, he asked for "adequate compensation for pain and suffering".

The district court of Osnabrück awarded the man a compensation for pain and suffering of 12,000 euros. Both sides called the next instance: the patient wanted more, the doctor only 7,500 euros.

The OLG now increased the compensation for pain and suffering to 20,000 euros. The consequences for the patient and the "very considerable fault of the doctor" should be taken into account.

The patient had suffered permanent cartilage damage, which considerably restricted the “formerly very active man” in his lifestyle.

The doctor noticed the lack of the metal tip, but initially "resigned himself to the fact that one of his patients could be seriously injured as a result". Neither did he initiate a check when changing the dressing or pulling the strings. It was only because of the man's considerable pain that he became active. "This gives rise to such a serious charge of gross negligence that a substantial increase in pain and suffering is required to satisfy the plaintiff," says the judgment of October 24, 2018. mwo / fle

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