Treatment error of a veterinarian

Also, when a veterinarian treats an animal, a gross maladministration capable of causing harm of the kind actually encountered regularly results in the reversal of the objective burden of proof on the causal link between the treatment error and the damage to health.

BGH JUDGMENT VI ZR 247 / 15 of 10. May 2016

BGB § 823 I

BGH, judgment of the 10. May 2016 - VI ZR 247 / 15 - OLG Oldenburg

LG Osnabrück
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The VI. Civil Senate of the Federal Court has to the hearing of the 10. May 2016 by the judges Stoehr and Wellner, the judges of Pentz, dr. Oehler and dr. Roloff
recognized for right:
The revision against the judgment of the 14. Civil Senate of the Oberlan-desgericht Oldenburg of the 26. March 2015 will be rejected at the expense of the defendant.
By rights
The plaintiff claims damages against the defendant for breach of obligations under a veterinary treatment contract.
The plaintiff was the owner of a stallion. On the 8. In July 2010, she presented the horse to the accused veterinarian for treatment after finding an injury to the inside of the right rear leg. The defendant closed the wound and gave the instruction that the horse had to be spared for two days, but could then be ridden again, as long as no swelling in the wound area occurs. On the 11. July 2010 the horse was picked up for riding. This resulted in slight punctures in the area of ​​the injured leg, so that the riding was discontinued. On the 14. July 2010 was
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DE diagnosed a fracture of the tibia in the back right. The operation of the fracture did not succeed, the horse was euthanized.
The applicant has alleged that the 8. July 2010-treated injury was caused by the stroke of a mare. This not only led to the injury of the skin, but also to a fissure of the underlying bones. The fissure was within the following days to the 14. July 2010 diagnosed fracture developed. The defendant had neglected to treat a lahmheits- and X-ray examination of the horse. The fissure could have been detected.
The plaintiff has requested that the defendant be ordered to pay 114.146,41 € compensation and out-of-court attorney's fees, and that the defendant is obliged to compensate her for any further damage caused by the fact that the stallion is being EU-based as far as claims were not quantified or transferred to third parties. The district court has declared by reason of a partial and basic judgment the claim for damages to 1 which has been filed for damages to be justified and stipulates the obligation to pay compensation for further damages. The Higher Regional Court has dismissed the defendant's appeal on the ground that the claim for compensation for legal fees against 2, which had been made to cover the costs of legal fees, was in principle also declared to be justified. With the appeal approved by the Court of Appeal, the defendant continues to pursue its claim to dismiss the action.
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In the opinion of the appellate court, the plaintiff is entitled to a claim against the defendant for damages for breach of duty arising from a veterinary treatment contract according to § 280 para. 1 BGB. Against the finding of the district court, on 8. July 2010 had a fissure of the tibia in the back right, extending to the 14. July 2010 had developed into a full-standing fracture, and as a result of which the horse had to be euthanized, there was nothing to remember. The defendant should be charged with a gross violation of the obligations arising from the veterinary treatment contract. It was a Beföhnhebungsfehler before, because he had carried out no Lahmheitsausuung in the trot. This would have given with sufficient probability a functional impairment of the right hindquarters of the horse, which should have caused the defendant to further diagnostics and appropriate precautions. It would have been imperative on the basis of the functional impairment to prescribe strict box rest and measures which would have been suitable for preventing the horse from lying down as far as possible. In the event that no radiographic evidence could have been provided, the development of lameness would have been monitored and, if necessary, an X-ray examination would have to be made several days later. The omission of these measures was grossly flawed. The fissure was a particularly obvious injury with the risk of serious complications, as a full-length tibial fracture regularly led to a fatal outcome.
Even if one followed the opinion of the defendant, at the 8. July 2010 had been a Lahmigkeitsuntersuchung not indicated in the trot, would be no
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deviating assessment. In that case, the defendant would have had to provide special advice and information on account of the great risk of subsequent complications and a subsequent lethal course of events if he wished to forego an immediate further investigation. He should have informed the applicant about the conditions for preventing a fracture.
Because of the inexplicable nature of the causal course, it can be assumed that the defendant's erroneous treatment had become causal for the formation of the complete fracture. A reversal of the burden of proof in favor of the applicant for causal causation was necessary. Although this does not follow from an analogous application of § 630h Abs. 5 BGB on the veterinary medical treatment contract, because it lacks the assumption of an analogy to an unlawful regulatory gap. There was no evidence for the justification of the law on the rights of patients (BT print 17 / 10488) and are also not apparent due to the intention of the legislature to improve the rights of patients. In addition, there are strong reasons against a blanket takeover of the burden-of-burden reversal principles developed for the human medical treatment contract in the event of a gross treatment or deliberation error for veterinary treatment. Unlike a human being, the attending vet relies to a much greater extent on indirect conclusions about the cause of the illness or the cause of the illness and the course of treatment. In addition, husbandry conditions and the involuntary and - depending on the nature of the animal - only limited controllable behavior could make the success of treatment measures considerably more difficult. Therefore, it should be examined in each individual case whether the reasons which justified a reversal of the burden of proof in the case of the treatment contract for a medical care contract could also justify a reversal of the burden of proof in the specific veterinary treatment contract. This should be answered in the affirmative.
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The judgment under appeal stands up to the result of the revisional review.
1. The revision is permitted. In particular, unlike the Revisi onreswiderung means - in the sense of § 551 paragraph 3 sentence 1 No. 2a ZPO has been justified sufficient. According to that provision, the reasons for the appeal must include the specific name of the circumstances giving rise to the infringement. It is necessary that the establishment of the audit deal with the main reasons for the appeal judgment and concretely explain why the judgment should be legally flawed. If the appellate court has based its decision on several independent and independent considerations, the appellant must state for each of those reasons why they can not survive; otherwise, the appeal is inadmissible in its entirety (see Senate Resolution of 18, October 2005 - VI eg 81 / 04, VersR 2006, 285 No. 8; BGH, judgments of the 20 May 2011 - V ZR 250 / 10, WuM 2011, 543 Rn. 6; of the 22 June 2015 - II ZR 166 / 14, NJW 2015, 3040 Rn. 12, order of the 15, June 2011 - XII eg 572 / 10, NJW 2011, 2367 Rn. 10). These requirements are fulfilled because the revision generally addresses the affirmative conclusion of causality by the appeals court on the assumption of a reversal of the burden of proof.
2. The Court of Appeal rightly accepted a reversal of the burden of proof to Guns-th by the plaintiff in respect of a gross breach of the duties arising from the veterinary treatment contract - in the sense of a deficiency-finding error of the defendant. In that regard, the revision does not challenge the findings in this regard and the assessment that the treatment error is crude. However, it claims that it is legally flawed, a reversal of the burden of proof
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Favor of the injured pet owner or animal owner. The principles for the reversal of the burden of proof in the case of a gross treatment error or a finding error developed for the treatment of human medicine by the case law and now adopted in § 630h Abs. 5 BGB could not be applied to the veterinary treatment.
(a) In the human medical field, a gross maladministration capable of causing harm of the kind actually produced regularly leads to the reversal of the objective burden of proof on the causal link between the medical error and the damage to health (see, for example, the Senate, 27 April 2004 - VI ZR 34 / 03, BGHZ 159, 48, 54, 16 November 2004 - VI ZR 328 / 03, VersR 2005, 228, 229, 8 January 2008 - VI ZR 118 / 06, VersR 2008, 490 Rn. 11). In the case of a finding error, there is a reversal of the burden of proof with regard to liability-based causation if the omission of a medical assessment already constitutes a gross medical error (see Senate, judgments of the 13 January 1998 - VI ZR 242 / 96 , BGHZ 138, 1, 5 f the 29 September 2009 - VI ZR 251 / 08, VersR 2010, 115 Rn 8, of the 13 September 2011 - VI ZR 144 / 10, VersR 2011, 1400 Rn. 8; of the 2 July 2013 - VI ZR 554 / 12, VersR 2013, 1174 Rn. 11; of the 21 January 2014 - VI ZR 78 / 13, VersR 2014, 374 Rn. 20; of the 24 February 2015 - VI ZR 106 / 13, VersR 2015, 712 Rn. 15). In addition, a not grossly incorrect omission of the findings can then lead to a reversal of the burden of proof regarding the causality of the treatment error for the damage occurred, if the required clarification of the symptoms with sufficient probability would have shown a positive positive result and the misjudgment of this finding as fundamental or the non-response to it as grossly flawed, and these errors are generally
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(See Senate, judgments of the 13 February 1996 - VI ZR 402 / 94, BGHZ 132, 47, 52, of the 27 April 2004 - VI ZR 34 / 03, BGHZ 159, 48, 56; 13 - VI ZR 2011 / 144, VersR 10, 2011 1400, 8 July 2 - VI ZR 2013 / 554, VersR 12, 2013 1174, 11 January 21 - VI ZR 2014 / 78 , VersR 13, 2014 Rn. 374; from 20 February 24 - VI ZR 2015 / 106, VersR 13, 2015 Rn. 712). The evidence-related consequences of a grossly faulty treatment procedure do not follow from the requirement of procedural equality of arms. Rather, they point out that the subsequent elucidation of the actual treatment is made more difficult because of the special weight of the treatment error and its importance for the treatment in such a way that the doctor in good faith - so for reasons of equity - the patient ducks can not expect the full proof of causality. The reversal of the burden of proof is intended to compensate for the fact that the spectrum of causes responsible for the injury has been particularly widened or postponed because of the elementary importance of the error (see Senate, judgments of the 15, September 21 - VI ZR 1982 / 302, BGHZ 80, 85, 212, from 216, February 3 - VI ZR 1987 / 56, BGHZ 86, 99, 391, from 396, February 13 - VI ZR 1996 / 402, BGHZ 94, 132, 47; from 52 October 6 - VI ZR 2009 / 24, VersR 09, 2009 Rn. 1668 mwN, from 14, March 26 - VI ZR 2013 / 109, Vers 12, 2013 Rn. 1000).
b) The case law of the Higher Regional Courts almost unanimously assumes that the legal principles developed in human medicine regarding the reversal of the burden of proof in the case of gross treatment errors, in particular also in the case of findings of error, must be transferred to the veterinary treatment (see OLG Celle, judgment of 13 February 1989 - 1 U 15 / 88, VersR 1989, 714; OLG Munich, judgment of the 9 March 1989 - 24 U 262 / 88, Vers 1989, 714 f.HCLF Stuttgart, judgment of the 14 June 1995 - 14 U 26 / 94, VersR 1996, 1029, 1030;
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OLG Hamm, judgment of the 3. December 2003 - 3 U 108 / 02, OLGR Hamm 2004, 62, 64 f. with rejection decision of the BGH of the 5. April 2005 - VI ZR 23 / 04; OLG Schleswig, judgment of the 14. January 2011 - 4 U 86 / 07, SLHA 2011, 234, 230; Frankfurt Higher Regional Court, judgment of the 1. February 2011 - 8 U 118 / 10, NJW-RR 2011, 1246; OLG Celle, judgment of the 14. February 2011 - 20 U 2 / 09, NJW-RR 2011, 1357, 1358; OLG Brandenburg, judgment of the 26. April 2012 - 12 U 166 / 10, Juris Rn. 17; OLG Hamm, judgment of the 21. February 2014 - 26 U 3 / 11, RdL 2014, 158, 159; aA OLG Koblenz, Decision of the 18. December 2008 - 10 U 73 / 08, Vers 2009, 1503, 1504; revealing OLG Koblenz, resolution of the 21. Except 2014 - 5 U 554 / 14, MDR 2015, 29 f.). This view is shared in the literature (see Adolphsen in Terbille / Clausen / Schroeder-Printzen, Munich Medical Manual Medical Law, 2, ed., § 16 Rn 305; Baur, Vers 2010, 406; Bleckwenn, The liability of the veterinarian in Civil Law, 2014, pp. 414 et seq., 425 for MüKoBGB / Wagner, BGB, 6, ed., § 823 Rn. 736, 848; Oexmann, Horse Purchase Veterinary Liability, 1992, p. 120; Oexmann / Wiemer, Forensic Problems Schulz, The Civil Liability of the Veterinarian, 2007, pp. 35 f .; Staudinger / Hager (1991) Civil Code, § 144, No. 2009).
c) The question of whether the principles on the reversal of the burden of proof in case of gross treatment errors also apply in the field of veterinary medicine has not yet been finally clarified by the Senate. He has, however, in his rejection order from the 5. April 2005 (VI ZR 23 / 04) on the judgment of the OLG Hamm of the 3. December 2003 (3 U 108 / 02, OLGR Hamm 2004, 62) executed after the Senate judgment of the 15. March 1977 (VI ZR 201 / 75, Vers 1977, 546) do not raise concerns about the reversal of the burden of proof due to gross veterinary failure, as adopted by the Court of Appeal. In that judgment he stated that only a comparison of the functions could show the extent to which veterinarians and medical practitioners are treated differently or equally. On the one hand, the activity is correct
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des Tierarztes als solche, die Erhaltung und Heilung eines lebenden Organis-mus, mit derjenigen des Humanarztes weitgehend überein. Andererseits sei die wirtschaftliche und rechtliche Zweckrichtung dieser Tätigkeit verschieden, weil sie sich beim Tierarzt auf Sachen (so das damalige Recht, vgl. jetzt § 90a BGB), ja vielfach “Waren” beziehe, und deshalb – begrenzt nur durch die recht-lichen und sittlichen Gebote des Tierschutzes – weithin nach wirtschaftlichen Erwägungen richten müsse, die in der Humanmedizin im Rahmen des Mögli-chen zurückzudrängen seien.
d) After the comparison of the functions to be made, as in the 5 decision. April 2005 considers that the same applies to the treatment of the burden of proof, which has also been developed in the case of a veterinary medical treatment of a serious treatment error, in particular in the case of a finding error.
aa) Both activities refer to a living organism, in which the doctor may owe the effort to help and cure, but not the success. Precisely because of the intrinsic legality and far-reaching unmanageability of the living organism, a failure or an incident can not generally indicate a misbehavior or culpability of the physician (see 15 Senate judgment - March 1977 - VI ZR 201 / 75, supra, 547) , In that regard, the argument that the reversal of the burden of proof should compensate for the particular widening or deferring of the range of causes of injury for the elementary importance of the error also applies to veterinary treatment of ne special importance. Even the grossly mistreated vet has brought in a serious violation of the accepted rules of animal-medical art Enlightenment difficulties in the action
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and thus deepened the evidence on the part of the victim. Consequently, the same problematic problems are given in grossly incorrect veterinary treatments as in such measures of human medicine. The Senate opinion of the 15. In contrast to veterinary information (see 1977 Senate judgment in March 18 - VI ZR 1980 / 39, Vers 79, 1980, 652), none of the economic considerations mentioned in 653's comments on a questionable burden reversal after a gross treatment error Role, because this is not about the fact that the client can weigh which of the proposed treatment measures are desirable for him for economic or other reasons, and in what interventions of the veterinarian he wants to comply accordingly.
bb) The law on improving the rights of patients and patients of the 20. February 2013 (BGBl. I S. 277) does not stand in the way. Although treatment contracts with veterinarians on the treatment of animals do not fall under the §§ 630a ff. BGB, because patient in the sense of § 630a Abs. 1 BGB is only a human being and the §§ 630a ff. BGB especially on the special needs of man and the protection of his right to self-determination (BT Print 17 / 10488 S. 18). In the legal reason to § 630a BGB is however expressly pointed out that the activity of the veterinarian is comparable to the medical treatment by a human physician, as far as the healing and preservation of a living organism go. According to the case-law of the Federal Court of Justice, which was continued by higher regional courts, the principles of burden-of-burden distribution developed in the field of human medicine would therefore also be applied in the veterinary field. The jurisprudence is not hindered by the statutory provisions on the treatment contract to this extent to be maintained (see BT-Drucks. 17 / 10488 S. 18). For a equal treatment in the here decided extent speaks for the rest also the law for
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Improving the legal status of the animal in civil law of the 20. August 1990 (BGBl. I S. 1762), through which the central idea of ​​an ethically based animal welfare, that the human being bears responsibility for the animal as a fellow-creature and pain-sensitive beings, also in the civil right, among other things by § 90a, § 251 para. 2 sentence 2 BGB should be emphasized more clearly (see BT-prints 11 / 7369 S. 1, 5).
cc) Entgegen der Auffassung des Berufungsgerichts führt ein grober Be-handlungsfehler bei einer veterinärmedizinischen Behandlung grundsätzlich zu einer Beweislastumkehr, ohne dass dem Tatrichter insoweit ein Ermessen im Einzelfall zukäme. Zwar ist richtig, dass der behandelnde Tierarzt anders als bei einem Menschen bei einem Tier in weit größerem Maß auf indirekte Rück-schlüsse zur Krankheits- bzw. Verletzungsursache und zum Behandlungsver-lauf angewiesen ist. Zudem können die Haltungsbedingungen sowie das unwill-kürliche und – je nach Art des Tieres – nur begrenzt steuerbare Verhalten die Behandlung erschweren. Dies ist indes bereits bei der Wertung, ob ein grober Behandlungsfehler vorliegt, also ein Fehler, der aus objektiv tierärztlicher Sicht nicht mehr verständlich ist, weil er einem Tierarzt schlechterdings nicht unter-laufen darf, zu berücksichtigen. Dadurch wird eine flexible und angemessene Lösung unter Berücksichtigung der jeweiligen Umstände des Einzelfalls ge-währleistet. Aus Gründen der Rechtssicherheit kann hingegen bei Vorliegen eines groben Behandlungsfehlers entgegen der Auffassung des Berufungsge-richts nicht erneut hinsichtlich der Entscheidung, ob eine Beweislastumkehr er-folgt, auf die Umstände des jeweiligen Einzelfalls abgestellt werden. Ein “Er-messen” des Tatrichters würde bei der Anwendung von Beweislastregeln dem Gebot der Rechtssicherheit zuwiderlaufen. Danach müssen der Rechtssuchen-de bzw. sein Anwalt in der Lage sein, das Prozessrisiko in tatsächlicher Hinsicht abzuschätzen (vgl. Senatsurteil vom 27. April 2004 – VI ZR 34/03, BGHZ 159, 48, 55 f.).
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e) Since the main reason of the court of appeal is the decision, it does not depend on the reasons for the decision.

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