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Do not ignore unclear doctor's summons


BGH checks medical liability: patient had cancer instead of vaginal fungi
Karlsruhe (jur). There are good reasons why doctors do not immediately speak plain text in a written communication, but rather ask patients personally to the practice. Patients should not simply ignore such a request, but at least ask for the reasons, as can be seen from a recently published judgment of the Federal Court of Justice (BGH) in Karlsruhe on April 11, 2017 (Az .: VI ZR 576/15). Conversely, in the case of urgent concerns, doctors should also check whether the patient has complied with the request.

Also of interest to lawyers: In another guiding principle, the BGH affirmed that courts can only split a dispute into several partial judgments if it is impossible that the individual parts will be judged differently in the result.

In the event of a dispute, a 26-year-old woman went to a joint gynecological practice in April 2007 for cancer screening. A smear showed an unclear finding. A further clarification was therefore necessary as part of the early detection of the cervix. When the corresponding results were available, the doctor sent the patient a prescription for certain vaginal tablets. These are primarily used against trichomoniasis, an attack with certain unicellular organisms. Here, however, the tablets should lighten the cell structure and thus ensure better examination results. After using the tablets, the patient should come back to the practice.

However, the patient did not appear again until January 2008 - because of a prescription for a contraceptive. The doctor took another smear - again with unclear findings. Again, the patient received a letter with a prescription for the vaginal tablets and the associated standard letter with a request to visit the practice.

When the patient came to the practice in April 2008, the doctor immediately sent her to a corresponding specialist office for a tissue examination. Cancer tissue was found on the cervix. As a result, the woman was operated on four times.

With her complaint, the patient complains of insufficient information. She used the vaginal tablets, but assumed that she had a fungal disease. She therefore did not consider it necessary to visit the practice again. She asked the doctor for pain relief of 30,000 euros and compensation for loss of earnings and treatment costs of 42,000 euros.

The Kammergericht Berlin assumed an error in the findings and awarded the patient 15,000 euros in pain and suffering compensation. It separated the claim for damages because there was still a need for clarification.

As the BGH has now decided, there is no finding error. According to her own data, which she had not contradicted, she wrote to the patient again with her cover letter to collect the necessary further findings. Therefore, "only the existence of a violation of the obligation to provide therapeutic advice, for example due to a failure to indicate the urgency of the measure, is considered".

Therefore, the Berlin Court of Appeal should definitely clarify again whether the letter contained a request to visit the practice again. If so, it should assess how the omitted warning is to be classified.

An expert had considered this "on its own" as error-free. This could result in an obligation to check whether the patient "understood the prescription and the cover letter correctly and reported for further examination". The BGH emphasizes that the severity of the possible illness is of particular importance.

In addition, the Karlsruhe judges contested the division of the dispute by the higher court. Because even in the dispute over damages, the first question is whether the doctor can be accused of a breach of duty that is responsible for consequential damage. The Chamber Court should therefore have checked this jointly for the compensation for pain and suffering and the claim for damages.

The Karlsruhe judges had previously decided that a failure to indicate an urgency would not automatically count as a gross mistake; after that, it can still be considered a simple mistake if the doctor did not convey an examination as urgent, but at least as "necessary" (judgment of November 17, 2015, ref .: VI ZR 476/14; JurAgentur report of 15 January 2016). mwo / fle

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