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OLG Frankfurt / Main: Doctors have to pay damages
If doctors do not examine an expectant mother for a severe disability of the child, they can later be liable for damages. If the parents later build a necessary new home because of their disabled child, the doctors must therefore also bear the accruing interim financing costs due to their treatment error, the Higher Regional Court (OLG) Frankfurt am Main decided in a judgment published on Monday, October 1, 2018 (Az. : 8 U 181/16). Because if the treatment had been faultless during pregnancy, the mother would have had an abortion.
In the specific case, it was about faulty pregnancy care. Contrary to the treatment contract, the treating doctors had not examined whether the child was disabled during the mother's pregnancy. The mother finally gave birth to a daughter with trisomy 18 and severe physical malformations. The child died of his underlying disease at the age of three.
Because of her disability, the daughter could not hold her torso and head properly, nor could she eat, crawl and walk. Since the condominium could not be converted for the disabled and was only accessible by stairs, the parents decided to build their own home when the child was two years old. At this point the parents were expecting their second child.
The construction was financed with a loan until the condominium was sold. The parents now requested the interim financing costs in the middle five-digit amount as compensation from the treating doctors. These had carried out incorrect pregnancy care and had not examined whether the child in the womb was disabled. This had taken away the possibility of an abortion.
The OLG agreed with the parents. If the pregnancy treatment had been flawless, the mother would have aborted the child. The parents had "decided because of their daughter's most severe handicap ... and not because of another child's extensive family planning ... to give up the condominium and build a family home in the immediate vicinity," said the OLG.
The new home was also necessary. Because the old apartment was only accessible via several stairs. There was also no parking space near the apartment. In addition, the disabled daughter could only be transported using a heavy, special stroller, which was very difficult to climb the stairs.
The daughter also suffered from illness-related nighttime restlessness, which "was accompanied by a considerable amount of noise". Because of the disturbances and impairments of the neighbors, the parents were exposed to strong psychological pressure. This also made home building necessary. Renting an apartment for the disabled was not an alternative. fle