BGH protects policyholders from recourse
If the coverage areas of several insurance companies overlap, the insurers must agree on this among themselves. Instead, they cannot hold the policyholder liable, as the Federal Court of Justice (BGH) in Karlsruhe decided in a leading judgment published on May 11, 2018 (Az .: VI ZR 151/17). It therefore dismissed an insurer's complaint against a doctor who was insured by various companies for his activities in private practice and as an honorary doctor in a hospital.
The hospital in Saxony-Anhalt has a contract with Ergo Versicherung AG, which explicitly includes the activities of honorary doctors. The neurosurgeon has taken out his own insurance with another insurer for his private practice.
In 2010 the doctor advised a patient in his practice with persistent back pain to partially stiffen the spine with so-called PLIF cages; these are hard “baskets” that are placed between two vertebrae instead of the intervertebral disc. The neurosurgeon also conducted the consultation in his practice, and he then performed the operation himself in the hospital.
Two days after the operation, there was a shift in the “cages” used in the lumbar spine. Attempts by the neurosurgeon and then another clinic to try to correct this through further operations were unsuccessful.
Because of the ongoing complaints, the patient moved to the arbitration board of the State Medical Association. There, experts came to the conclusion that the operation was not indicated at all or that it was at least one of several treatment options. In addition, the neurosurgeon did not carry out the original operation and the first attempt to fix it properly.
Ergo-Versicherung and the patient agreed on a settlement in the amount of 170,000 euros in front of the arbitration board. In addition, the Ergo reimbursed the health insurance company paid fees of 24,500 euros. With its lawsuit against the doctor, the insurance company demands reimbursement of half of the compensation payments made.
The BGH now rejected this request. In the event of a mistake in the hospital, the doctor and the hospital sponsor were basically half liable. Here, however, the doctor's mistakes were expressly covered by the insurance taken out with Ergo.
As far as possible errors of the neurosurgeon in his practice are concerned, there is "a case of multiple insurance". Because here too, an incorrect diagnosis or insufficient information could lead to full liability of the doctor.
Both insurance companies therefore insure an “identical risk”, namely the risk of claims for damages by patients. Unless otherwise expressly agreed, in such cases, "the internal settlement between the insurers" has priority over a recourse against the insured, here against the doctor, the BGH judged.
According to the judgment of March 13, 2018, which has now been published in writing, Ergo Versicherung must therefore appeal to the doctor's practice insurance instead of the doctor. mwo / fle