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BGH: Otherwise, "gross treatment errors" come into consideration
Clinics should be able to demonstrate compliance with hygiene standards. Otherwise, this can indicate a gross hygiene error, so that patients can make easier liability claims due to suffered health damage, the Federal Court of Justice (BGH) in Karlsruhe ruled in a recently published judgment of February 19, 2019 (Az .: VI ZR 505/17) .
A woman from the Lüneburg area had sued, her enlarged uterus and part of a labia had been surgically removed. The attending doctors had previously informed the woman about the procedure.
On March 6, 2012, she was released from the hospital and taken to the emergency room two days later. It was examined clinically in general, a gynecological examination was not documented.
After the woman reported severe vaginal bleeding, she underwent another operation. An open suture, inflammation in the abdominal cavity and an infection with the enterococcus faecalis were found.
The patient attributes the infection and inflammation to a medical treatment error and poor hygiene in the clinic. You have not received the usual preventive antibiotic treatment.
The infection with the intestinal bacteria apparently goes back to the fellow patient in her hospital room. This smeared feces on the walls. Mold was also present in the shower. Under certain circumstances, the intestinal germ could have got into the wound during the operation due to the lack of disinfectant measures.
In court, the patient made claims for pain and suffering because of the incorrect treatment and the lack of hygiene. The hospital denied the hygienic grievances.
The Higher Regional Court (OLG) Celle decided that the clinic should not be accused of any medical errors. The applicant has not shown that the alleged lack of hygiene in the patient room caused the infection. In addition, she had given the possibility of infection during the surgical procedure. However, this is not a "gross" treatment error.
However, the BGH overturned the LSG judgment and referred it back. On the one hand, the OLG did not take sufficient account of the lack of preventive treatment with antibiotics when examining the existence of a “gross treatment error”. On the other hand, the clinic meets a so-called "secondary burden of explanation" because of the hygiene deficiencies mentioned.
First, there is a "primary burden of explanation" on the patient. She had to give reasoned information about existing hygiene deficiencies. In the case of credibly stated "hygiene violations", the hospital would have to "regularly" prove within the scope of its secondary burden of proof that it had complied with the hygiene standards. For example, disinfection and cleaning plans could be presented as evidence that hygiene was observed. The justified patient presumption about the existence of a hygiene defect is sufficient for the clinic to have to invalidate it again.
If the accusation of poor hygiene cannot be eliminated, a "gross treatment error" should be considered, the BGH decided. A gross treatment error leads to a reversal of the burden of proof: Then it is no longer the patient's duty to provide evidence, but the other way around, the clinic has to prove that she is not responsible for the damage to her health.
On August 16, 2016, the BGH had made a similar decision in another dispute regarding a hygiene error alleged by a patient (Az .: VI ZR 634/15, JurAgentur notification of October 5, 2016). At that time, the plaintiff's wound had become infected after an operation on his elbow, so that he has suffered from restricted mobility and pain since then. The patient suspected a hygiene error and claimed to have been in a room with another patient whose wound was apparently infected with a resistant germ.
In the dispute at the time, the BGH also decided that in the case of unexplained sources of infection, the patient must first prove where he might have been infected. Here, however, the plaintiff referred to his neighbors with a wound that did not heal. An expert believed that it could be accommodated together in a patient room if higher hygiene standards were observed. With this, however, the clinic now has the “burden of proof” whether it adhered to such increased hygiene standards, according to the BGH. fle / mwo