A lack of cooperation on the part of a patient does not rule out medical errors
Even if patient is not ready for possible medical malpractice per se. Rather, his doctors are obliged to point out possible consequences in this case. That was decided by the Federal Court of Justice (BGH). The patient was operated on in 1999 in the defendant clinic for pituitary tumor. After nine days, he was released home. When he began to lose his body there, he went to the clinic again in weak state. There he was advised to stay and given an infusion treatment. The patient refused both and allowed himself to be taken home. A day later, he was admitted to the clinic as an emergency, where stroke was diagnosed. After that he was unable to work for year. Therefore, he sued the doctors for compensation for incorrect information. The BGH overturned the judgment of the Higher Regional Court (OLG) and referred the case back for renewed hearing and decision. Because when assessing the question of whether there was simple or gross treatment error, the OLG did not rely on sufficient medical explanations. In particular, it failed to recognize that the question of whether medical error had occurred or not did not depend on whether the patient could have been forced to be admitted to the hospital. Rather, the decisive factor is that the patient may not have been adequately informed by the doctor about the necessity of inpatient admission. As already decided for the therapeutic education, patient can only be blamed for not following medical instructions or recommendations if he has understood them. The physician's knowledge and information advantage over the medical layperson is considerable. The extent to which this also played role in the present case cannot be inferred from the statements in the judgment under appeal. (Federal Court of Justice, judgment of June 16, 2009, Az .: VI ZR 157/08) Attorney Barbara Berner
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