BGH: Reversal of the burden of proof applies in the event of gross negligence
If sick and dependent people rely on the rapid help of a home emergency call system, the home emergency service provider must act really quickly in an emergency and, in case of doubt, call an emergency medical service. If a person in need of assistance presses the emergency call button and then he can only hear a groan of minutes, the failure to notify qualified rescue workers constitutes a gross violation of contractual protection obligations, the Federal Court of Justice (BGH) in Karlsruhe (Az .: III ZR 92/16).
The decisive legal dispute concerned a seriously ill 78-year-old man with care level 2. He lived alone in an apartment in a senior residence. He suffered from numerous health problems and illnesses, including diabetes, shortness of breath, cardiac arrhythmia and high blood pressure. There was a greatly increased risk of stroke.
In order to continue living alone in his apartment and to be able to receive help in the event of a medical emergency, the man concluded a house emergency call contract with Johanniter Unfallhilfe. An emergency call system was installed in the man's apartment. In an emergency, this can be activated at the push of a button. An employee in the emergency center can then make contact. In an emergency, a locksmith, the family doctor or the emergency services should then be informed as required.
On April 9, 2012, the 78-year-old was actually in need of urgent help and pressed the house emergency button. The employee at the service headquarters heard only a groan for minutes. When several phone calls to the man failed, a security agent and later another person were sent to the apartment.
They found the man lying on the floor, raised him up, put him on a couch, and then left him alone. The emergency services were not informed.
Relatives found the man on April 11, 2012. He was paralyzed on one side and had a speech disorder. A stroke was diagnosed in the hospital, probably one to three days ago.
The man said that the consequences of the stroke could have been avoided. The house emergency worker simply needed to call emergency services or other qualified medical personnel quickly. Here the employee of the security service was only trained in first aid.
Johanniter Unfallhilfe denied that it was responsible for the consequences of the stroke. She refused to pay damages and compensation for pain and suffering of at least 40,000 euros.
Since the man has since passed away, the daughters continued to assert the claims as heirs.
While the district court and the Berlin district court dismissed their lawsuit, the lawsuit was now successful before the BGH. The house emergency call service "grossly neglected" its contractually agreed protection obligations. Although the service was not responsible for the success of the rescue measures, it was obliged to immediately provide appropriate assistance.
This was omitted here. Johanniter Unfallhilfe even knew about the previous illnesses and the risk of stroke. When the operator at the headquarters answered the emergency call and heard the moaning for minutes, he should have called for qualified medical help. However, this was omitted and was grossly negligent.
Similar to medical liability law, such action leads to a reversal of the burden of proof. The house emergency call service must then prove that the damage to health would have occurred if he had done everything correctly. Otherwise the house emergency service must be liable. The Berlin Court of Appeal must now check this again. fle / mwo / fle