The hospital may have to comply with increased hygiene standards

BGH clarifies the "burden of proof" for alleged hygiene errors
If patients complain of inadequate hygiene in the hospital, they must prove this. However, if they point out special risks, the hospital must demonstrate that it has complied with the associated hygiene standards, as the Federal Court of Justice (BGH) in Karlsruhe decided in a recently published decision of August 16, 2016 (Az .: VI ZR 634/15 ).

In this specific case, the then 36-year-old patient in Lower Saxony had undergone surgery on a so-called tennis elbow. The wound reignited several times and was reopened three times in subsequent operations. This did not bring final success: The patient still suffers from restricted movement and pain.

For this he blames a hygiene error of the hospital. He was in the room with another patient who had an infected wound in the knee area. The wound was not healed because the doctors apparently had “not got a grip on the germ”.

With his complaint, the patient said that the hospital had to prove that there had been no hygiene error.

According to the constant BGH case law, there are "fully manageable risks" in which the hospital or the doctor's office always has to demonstrate that there were no mistakes. Conversely, there are risks associated with the “imponderables of the human organism”. Because error-free treatment can therefore remain unsuccessful in individual cases, the burden of proof for errors lies with the patient.

With its new decision, the BGH has now made it clear that hospital hygiene is only a part of the “fully manageable risks”. This applies, for example, to the purity of the disinfectants used, the sterility of infusion liquids or the transmission of germs by the hospital staff. "All these cases have in common that there is objectively a danger, the source of which is determined and which can therefore be excluded with certainty."

In the case of an “unclear source of infection”, however, the burden of proof initially lies with the patient. In the specific case, it is a germ that can be found in every person. It could therefore come from the patient himself or from a visitor.

However, the patient referred to his neighbors with a wound that did not heal. An expert had stated that he would not open any further open wounds to such a patient, but that this is permissible according to the applicable recommendations if higher hygiene standards are observed.

After the Karlsruhe decision, these findings by the expert reversed the “burden of proof” (so-called secondary burden of proof). It is now up to the hospital to demonstrate that it has observed these increased hygiene standards. The Higher Regional Court (OLG) Celle is now to examine this in a specific case. mwo / fle

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