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Ophthalmologist does not have to reimburse blind fees after treatment errors


OLG Hamm: Damages and blind money have different goals
Hamm (jur). After faulty eye treatment, the doctor may have to pay compensation to the patient, but not to reimburse the state blind money they paid for the respective competent authorities. This was decided by the Higher Regional Court (OLG) Hamm in a recently published judgment of September 9, 20 2016 (Az .: 26 U 14/16). The dispute is now pending at the Federal Court of Justice (BGH) in Karlsruhe.

In the specific case, the patient was treated in 2006 and 2007 by an ophthalmologist in Recklinghausen for eye pain and dark vision. Although the complaints remained, the doctor did not examine the patient for glaucoma. It was not until the end of 2007 that another ophthalmologist diagnosed the glaucoma in both eyes at an advanced stage.

The patient is almost blind today. As in some other federal states, there is a state blind benefit in North Rhine-Westphalia. The regional association of Westphalia-Lippe was responsible for this. He has been paying blind money to the patient since early 2009.

Based on grossly faulty treatment by the ophthalmologist, his liability insurance paid the patient compensation in the amount of EUR 475,000.

With its lawsuit, the landscape association also demands that the eye doctor or insurance company be reimbursed for the blind money paid - 30,000 euros in 2009 alone.

The OLG Hamm dismissed this complaint. Reimbursement of social benefits is only considered in liability cases if the social benefits serve the same purpose as the patient's claim for damages. However, this is not the case here.

The blind benefit - and also a corresponding benefit for the deaf - are paid as a lump sum, regardless of income and wealth. It should alleviate disadvantages of the disability, enable participation in the life of society and facilitate a life that is as independent and self-determined as possible and avoid or at least reduce the need for care.

The performance is calculated abstractly. They do not claim to cover any additional expenses. On the other hand, the civil law claim for damages “only depends on the additional need that actually arises due to blindness”.

If the liability insurance company also had to reimburse the blind benefit, it could also count this against its compensation payments. This would make the blind worse off.

According to the laws in North Rhine-Westphalia, double compensation is still ruled out, because the regional association can offset compensation payments made due to additional expenses against the blind benefit, the OLG emphasized. The landscape association has appealed to the BGH against this ruling (ref .: VI ZR 454/16). mwo

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