Cancellation of surgery appointment
General terms and conditions in a choice performance contract with a clinic, according to which the patient is obliged to pay damages if he or she rejects an appointment for surgery, are usually ineffective.
The defendant from Munich joined the 19.06.2015 with a beauty clinic in Munich, Germany, for a ballot treatment and agreed on a surgery appointment to use the balloon for the 31.07.2015.
The Agreement includes, but is not limited to, the following terms and conditions:
In the event of cancellation or postponement of an intervention date promised by the patient, the (name of the clinic) will always charge a management fee of 60 Euro gross. (??)
In the absence of the patient on the day of the intervention or a short-term cancellation of the intervention date, the (name of the clinic) also charges a cancellation fee. (??)
It amounts to with refusal:
- less than 14 days before surgery 40%
- within 7 days before procedure 60%
- within 48 hours before the procedure -or-
- in the absence on the intervention day 100%
of the total amount invoiced gross.
At the 29.07.2015, the woman from Munich said the appointment first by phone and then in writing. The beauty clinic put her an invoice for 60 percent of the treatment fees, a total of 1494 Euro. The defendant did not pay. As a result, the billing firm of the beauty clinic filed a lawsuit to the district court of Munich.
The competent judge dismissed the action. The terms and conditions of the beauty clinic are ineffective.
The required cancellation fee ?? exceed the normally expected damage and be unreasonably high. Because the patient must pay in case of a cancellation within 48 hours before the intervention not only 100 percent of the gross amount but also pay an administrative fee of 60 Euro. The patient must therefore pay more for the short-term cancellation of the procedure than he would have to pay to perform the procedure. Such a high damage is completely unrealistic and obviously one-sided in favor of the user? so the court. Furthermore, the scheme does not take into account that, in the event of cancellation of surgery, the clinic would save on expenses such as medicines and consumables, electricity and cleaning costs to be deducted in favor of the patient.
The clause discriminates against the patient inappropriately, the court says.
?? Since the use of a curative treatment requires an increased personal relationship of trust between the practitioner and the patient, it is generally accepted that the latter can terminate the treatment contract at any time in accordance with §§ 621 Nr. 5, 627 BGB without specifying factual (or even important) reasons to have to?? the court continued, stating a judgment of the Federal Court. The patient must always have the opportunity to freely decide whether he wants to allow an intervention in the body or his health. "The economic interests of the practitioner must be reduced to the protection of the patient's interest in the protection of the patient's health," the grounds for the judgment.
Judgment of the local court of Munich from the 28.01.2016 file number 213 C 27099 / 15
The judgment is final.