The duty to inform the doctor exists only with respect to those risks that are already known at the time of treatment.

a) A duty to inform the doctor exists only with respect to those risks that are already known at the time of treatment.
b) The appellant, who triumphs in the first instance, may rely not only on timely notification that, and for what reasons, the Appeals Tribunal does not wish to follow the appraisal of the lower court, but also to obtain an opportunity to supplement his case-statement effectively or to take further evidence.
c) § 531 para. 2 sentence 1 No. 1 ZPO presupposes that the legal opinion of the court has influenced the first-instance substantive submissions of the party and has therefore become (co-) the reason for the fact that party submissions have been postponed to appeal proceedings. However, this is already to be assumed if the court of the first instance, had it shared the later considered correct by the Court of Appeal, had been obliged to make a reference under Section 139 para. 2 ZPO.

BGH DECISION VI ZR 370 / 17 of 29. May 2018

BGB § 280, § 823 Abs. 1 Aa, I; GG Art. 103 Abs. 1; ZPO § 531 Abs. 2


The VI. Civil Senate of the Federal Court has at 29. May 2018 by the chairman judge Galke, the judge Wellner, the judges of Pentz and Müller as well as the judge Dr. Small
The defendant's non-admission complaint becomes the basic and partial judgment of the 8. Civil Senate of the Higher Regional Court Frankfurt am Main of the 15. August 2017 canceled.
The case is remanded to the Court of Appeal for a new trial and a decision, including on the costs of the procedure for non-admission appeal.
The value in dispute is set at up to 140.000 €.
The plaintiffs claim the defendants for incorrect medical treatment and insufficient information about the risks of an operation for compensation for material and non-material damage.
1960, the 1-born plaintiff, is insured with 2 by the plaintiff. He suffered from a disease of the esophagus, which among other things leads to a functional stenosis and dysphagia (achalasia). He had been receiving medical treatment since 2003. At least two attempts had been made to correct the problems with balloon dilatation.
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Since the treatment measures did not lead to the desired success, it was recommended to the plaintiff, the surgical treatment of achalasia by a laparoscopic esophagomyotomy associated with a Hemifundoplicatio in the house of the defendant to 1. In the on the 2. August 2004-led reconnaissance interview was the plaintiff about the risks of bleeding, rebleeding, infection, thrombosis, embolism, transfusion (HIV, hepatitis), dysphagia and injury to intra-abdominal organs (esophagus, stomach, pancreas, spleen, vessels ). On the possibility of the occurrence of a pleural effusion (fluid accumulation between the ribs and peritoneum) and a Pleuraempyems (suppuration), the plaintiff was not advised. On the 3. August 2004, the plaintiff was operated by the defendant to 2. One at the 7. August 2004 X-ray examination revealed pleural effusions on both sides. On the 10. August 2004 was dismissed by the plaintiff. A few days later, pain at the surgical site, fever up to 40,5 degree and respiratory distress occurred, which is why the plaintiff repeatedly went into (not) medical treatment. On the 25. August 2004 was relieved of the pleural effusion in the St.V. Hospital in H. by inserting a so-called Pneumo Cath catheter. On the 30. In August 2004, a spiral CT scan of the thorax and upper abdomen revealed an increase in pleural effusion on the left and a suspicion of pleural empyema. Since a permanent improvement in the overall clinical situation did not occur, was on 7. September 2004 conducted in H. an exploratory thoracotomy, decortication and pleurolysis.
The district court dismissed the claim. The defendant did not make any errors in the treatment of the applicant. The applicant was also not sufficiently informed about the risks associated with the operation. After the convincing statements by the expert in the field of Prof. Dr. med. For example, the applicant had neither to point out the risk of pleural effusion nor the risk of pleural emphysema
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these diseases are not typical risks of the contraventional operation and there is no internal connection to the operation. On appeal by the applicants, the Oberlandesgericht (Regional Court of Appeal) appealed to Plaintiff Zak. 1 and 3 and the applicant's claim, para. 1 after hearing the expert on the allegation of maladministration declared in principle justified and found the replacement obligation of the defendant. The revision did not allow it. Against this, the defendants turn to the non-admission complaint.
In the opinion of the Court of Appeal, the defendants are jointly and severally liable to the applicants for damages for insufficient information on the risks associated with the operation. The plaintiff had to be informed before the intervention about the danger of the occurrence of a pleural empyema and its consequences. The pleural empyema is a risk known at that time in the specialist world, specifically associated with the therapy, which, because of the possibly associated consequences (opening of the thorax) for the life-style of the patient, could obviously have had significance for its decision. Both the expert Prof. dr. B. as well as the defendants themselves proved the former knowledge of the risk of the occurrence of a pleural embryo by inflammation of an operation-induced pleural effusion occurred in the decisive expert circles. Both cited a study published by 2008, according to which the pleural empyema is even one of the main complications in the surgical treatment of Achala-she. In four patients examined by 353, a pleural empyema had developed postoperatively without a leak in the esophagus being detected
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can. The remarks by Prof. dr. For example, it should be clearly understood that these relationships were already known at the time of the operation and did not first become known through the study published a few years later. The defendants also cited an English-language publication from the year 1994 according to which a pleural effusion could generally result from such operations as a potential source for empyema. Nor is the risk of the occurrence of a pleural empyema rare in such a way that the assumption of a duty to inform would lead to an exacerbation of the medical liability risk. According to the previously mentioned study, empyema is one of the main complications in the surgical treatment of acha-lasia. The partially deviating explanations of the expert Prof. dr. On the occasion of his hearing before the Landgericht, for example, he clearly disagreed with his differentiated written information. The expert clearly did not differentiate between the harmless pleural effusion and the dangerous pleural empyema during his hearing and confused the findings with precisely established probabilities.
By their first objection in the second instance objection of a hypothetical consent of the plaintiff in the operation, the defendant could not be heard under § 531 para. 2 ZPO. They would have had occasion to invoke, even in the first instance, at least in the alternative, a hypothetical consent after acknowledging the lack of information on the pleural effusion and the pleural empyema. The defendants had to make it clear that they were already relying on the new defense in the first instance, without the need for a hint under section 139 para. 2 sentence 1 ZPO.
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The non-admission complaint succeeds and according to § 544 para. 7 ZPO leads to the annulment of the challenged decision and the remittal of the legal dispute to the Court of Appeal. The Appellate Court's assessment that the defendants are liable to the plaintiffs for insufficient clarification of the risk involved in the development of a pleural empyema is based on a violation of the defendant's right to be heard under Art. 103 para. 1 GG ,
1. Under an infringement of Art. 103 Abs. 1 GG, the appellate court has come to the conclusion that it was already at the time of the contested intervention on the 3. August 2004 has been known in medical circles that a pleural empyema may develop after performing a laparoscopic esophagomyotomy.
a) The purpose of Art. 103 para. 1 GG is to ensure an appropriate course of the procedure (see BVerfGE 119, 292, 296). The individual should not merely be the object of the proceedings, but should have a hearing before a decision concerning his rights in order to be able to influence the proceedings and his result (see BVerfGE 84, 188, 190, 86 , 133, 144 ff.). Art. 103 para. 1 GG gives all parties involved in a legal proceeding the right to comment on the facts in question and the legal situation (see BVerfGE 19, 32, 36, 49, 325, 328; 55, 1, 6, 60, 175, 210;. to make 64, 135, 143 f) and to submit applications and Ausführun-gen (see BVerfGE 6, 19, 20;. 15, 303, 307, 36, 85, 87). This is in line with the duty of the court to take note of and consider the factual and legal submissions of the parties (see BVerfGE 60, 1, 5, 65, 227, 234, 84, 188, 190, 86, 133, 144 ff; BVerfG, decision of the
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1. August 2017 - 2 BvR 3068 / 14, NJW 2017, 3218 Rn. 47 mwN). If a specific speech of a party is the core of the party's case and is of crucial importance for the outcome of the case, the court has an obligation to consider the arguments put forward (see BVerfGE 47, 182, 188, 86, 133, 146; BVerfG, decision of the 27 February 2018 - 2 BvR 2821 / 14, WM 2018, 706 Rn. 18). The right to be heard also requires consideration of substantial requests for evidence. The non-consideration of a substantial offer of evidence violates Art. 103 Paragraph 1 GG, if it finds no support in procedural law (cf BVerfG, NJW 2017, 3218 Rn. 48 mwN).
b) These requirements are not met by the appeal judgment. The application for annulment rightly complains that the Appeals Tribunal delivered the defendant's written submission in a letter written by 18, which has been proved by a request for an expert's report. July 2017 has passed. In that pleading, the defendants had indicated that there was no evidence to suggest that it had been known in medical science in August 2004 that the surgical treatment of achalasia was at risk of developing pleural emptying and pleural effusion. This conclusion was reached by the expert Prof. Dr. med. B. also drawn at any time. The study he cited in his written opinion and appealed by the Appeals Tribunal, according to which four of 353's patients undergoing a Heller laparoscopic myotomy developed a pleural empyema, was shown to have been found by the expert's reference only from December 2008. The expert did not consider the complications of the pleural effusion and the pleural empyema at the material time of the operation to be in need of clarification, as he provided the applicant's explanation elsewhere in the written form
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Expert opinion expressly described as correct and comprehensive. As the non-admission complaint rightly asserted, the relevant information of the court expert agree with the statements of the private expert of the plaintiff Prof. Dr. med. T. agree that the defendants in their brief from the 20. July 2015 had embraced. According to this, the information provided by the plaintiff was exhaustive and exhaustive; due to the low incidence of achalasia and the still lower rate of surgical treatment, no reliable data was available on the rate of infections and pleural effusions following esophagomyotomy and hemifundoplication for this disease.
Die Nichtzulassungsbeschwerde rügt darüber hinaus zu Recht als ge-hörswidrig, dass das Berufungsgericht den Vortrag der Beklagten auf Seite 8 ihres Schriftsatzes vom 4. Oktober 2010 im Kern verkannt hat. Entgegen der Auffassung des Berufungsgerichts lässt sich nach dem Vorbringen der Beklag-ten der von ihnen zitierten englischsprachigen Veröffentlichung aus dem Jahre 1994 nicht entnehmen, dass sich nach einer Ösophagomyotomie ein Empyem entwickeln kann. Hinweise auf die Entwicklung eines Empyems nach einem solchen Eingriff waren nach dem Vortrag der Beklagten im unmittelbar nachfol-genden Absatz erst der “wegweisenden Arbeit” von Ross et al. von Dezember 2008 zu entnehmen. Hierbei handelt es sich aber um eben die Studie, die auch der gerichtliche Sachverständige in seinem schriftlichen Gutachten erwähnt hat-te und die erst mehr als vier Jahre nach dem Eingriff veröffentlicht worden ist.
c) The Appellate Court would have dealt with these points of view, which the defendants had set out in detail, and inquired as to whether the risk of developing a pleural empyema following a laparoscopic esophagomyotomy was already known in August 2004,
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by a (supplementary) expert report, if necessary by means of the supplementary hearing of the expert Prof. Dr. med. B., must clarify.
d) The hearing injury is also relevant to the decision. It can not be ruled out that the Appeals Tribunal would have arrived at a different opinion in the consideration of the defendant's presentation and the subsequent clarification of the facts. As the appellate court rightly assumed in the starting point, only known risks are to be clarified. If a risk was not yet known at the time of treatment, there is no duty to inform. If the attending physician was not aware of it and did not need to be aware of it, for example because it was only discussed in other areas of medical science but not in his area of ​​expertise, the doctor's liability for lack of culpable breach of duty ceases (see Senate judgment of 19 2010 - VI ZR 241 / 09, VersR 2011, 223 under II 1 .; from 29 January 1991 -... VI ZR 206 / 90, BGHZ 113, 297, 306 and Senate resolution of 16 June 2015 - VI ZR 332 / 14, Vers 2015 Rn. 13).
2. The appellate court further infringed the defendant's right to be heard under Art. 103 para. 1 GG by rejecting the objection of hypothetical consent raised by the appellate court in accordance with § 531 para. 2 ZPO.
a) As the application for refusal rightly argues, the new arguments of the first-instance defendant were admissible on the ground that the appellate court assessed the factual and legal situation differently from the court of first instance.
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aa) According to settled case-law, the appellant, who triumphed in the first instance, may rely not only on timely notification that, and for what reasons, the Appeals Tribunal does not wish to follow the appraisal of the lower court, but then also of opportunity to supplement his statement of facts appropriately to compete or other be-oriented (see Federal Constitutional Court, decisions of 12 June 2003 - 1 BvR 2285 / 02, NJW 2003, 2524;... from the 7 October 2016 - 2 BvR 1313 / 16, juris Rn 11;. BGH, judgment of 9 - October 2009 - V ZR 178 / 08, NJW 2010, 363, 365 mwN). The court must allow pertinent presentation by the party in accordance with § 139 ZPO. The obligation to inform the appellate court and the consideration of new submissions belong together insofar as the provision of section 531 para. 2 sentence 1 ZPO, which restricts the admissibility of new means of defense and appeals in the appellate court, has not changed anything. The obligation to give notice of a departure differing from the first instance would be null and void if a decision by the appellant in support of that decision were disregarded in the decision on the appeal. New arguments of the appellee, which is based on such a reference of the appeals court and should avoid the loss of process because of a deviating from the first instance-the legal or factual appraisal by the Court of Appeal, must be admitted, irrespective of whether it is at first instance could have been put forward (Federal Constitutional Court, Nichtannahmebe-circuit from 7 October 2016 - 2 BvR 1313 / 16, juris Rn 11;.. BGH, judgment of 9 October 2009 - V ZR 178 / 08, NJW 2010, 363, 365 further references.) ,
bb) According to these principles, the appellate court would have the letter from the defendant in the 18. July 2017's hypothesis.
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b) Irrespective of this, the Court of Appeal negated the conditions for admitting new submissions pursuant to § 531 para. 2 ZPO in a manifestly erroneous manner.
aa) As already stated, Art. 103 para. 1 GG commits the courts, requests and remarks of the litigants to take note of and consider. It is true that Article 103 para. 1 GG does not prevent the legislator from advocating for process acceleration by means of preclusive regulations. However, those rules restricting the right to be heard are strictly exceptional because of the serious consequences which they entail for the defaulting party. .. Kind 103 para 1 GG is certainly violated when the application of the time bar by the specialized court is open-knowledgeable incorrect (see BVerfGE 69, 145, 149;.. Federal Constitutional Court, decisions of 26 October 1999 - 2 BvR 1292 / 96, NJW 2000, 945, juris Rn. 12 for 7, Ok-tober 2016 - 2 BvR 1313 / 16, juris Rn 9, Senate Resolution of 3 March 2015 - VI ZR 490 / 13, VersR 2015, 1313 mwN) ,
bb) This is the case in disputes. The objection raised by the defendants of the hypothetical consent should have been taken into account in accordance with § 531 para. 2 sentence 1 No. 1 ZPO.
(1) Pursuant to § 531 para. 2 sentence 1 No. 1 ZPO, new means of defense and defense shall be allowed if they concern a point of view which the court of first instance has visibly overlooked or has been deemed insignificant. It is true that the provision only applies under the unwritten proviso that the legal opinion of the court has influenced the first-instance substantive submissions of the party and has therefore (without) caused a procedural error to be the reason for the party's case has moved to the appeal procedure (Senate decision
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from the 3. March 2015 - VI ZR 490 / 13, Vers 2015, 1313 Rn. 10; BGH, judgment of the 21. December 2011 - VIII ZR 166 / 11, NJW-RR 2012, 341 Rn. 19). However, this can already be assumed if the court of the first instance, had it shared the view of justice later found to be valid by the court of appeal, would have been obliged to make a reference under Section 139 para. 2 ZPO (see Senate Resolution of the 3 March 2015 - VI ZR 490 / 13, supra; BGH, judgment of 21 December 2011 - VIII ZR 166 / 11, loc 20;.... Musielak / ball ZPO, 15 on-location, § 531 Rn 17; Hk ZPO / Wöstmann , 7., Ed., § 531 Rn. 7, each with mwN).
(2) Diese Voraussetzungen sind im Streitfall erfüllt. Auf die Frage einer hypothetischen Einwilligung kam es auf der Grundlage der Rechtsauffassung des Landgerichts nicht an. Denn es hatte die erfolgte Aufklärung für ausrei-chend erachtet. Hätte das Landgericht stattdessen erwogen, auf der Grundlage der erhobenen Beweise und ohne weitere Sachaufklärung eine Verpflichtung der Beklagten, den Kläger über das Risiko der Entwicklung eines Pleuraergus-ses und eines Pleuraempyems aufzuklären, zu bejahen, hätte es die Kläger zuvor auf diesen Gesichtspunkt hinweisen müssen. Der gerichtliche Sachver-ständige hatte die Aufklärung des Klägers in seinem schriftlichen Gutachten – im Einklang mit der entsprechenden Beurteilung des Privatsachverständigen der Kläger – ausdrücklich als korrekt, umfassend und nicht zu beanstanden be-zeichnet. Zwar hatte er die Entwicklung eines Pleuraempyems als eine der Hauptkomplikationen der operativen Behandlung der Achalasie bezeichnet. Er hatte diese Erkenntnis aber – ohne weiteres erkennbar – aus einer Studie abge-leitet, die erst mehr als vier Jahre nach dem streitgegenständlichen Eingriff ver-öffentlicht worden war. Im Rahmen seiner Anhörung vor dem Landgericht hat der Sachverständige ausgeführt, dass weder das Auftreten eines Pleuraergus-ses noch das eines Pleuraempyems typische Risiken der streitgegenständli-chen Operation seien. Diese Komplikationen seien “weit weg von einer solchen Operation”; man könne die Situation vergleichen mit dem Auftreten eines Ge-
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brain abscess after an abdominal operation, about which also not enlightened. In this situation, the defendants had to expect not to lose the process on the grounds that they had not informed the plaintiff against the risk of developing a pleural effusion and a pleural empyema.
(3) Another assessment does not follow from the consideration of the appeal panel that the defendants had reason to raise the objection of hypothetical consent at first instance after learning about the occurrence of a pleural effusion and a pleura -empyems. The appellate court overlooks the extent that the negligence of the party, the admission of new arguments - unlike in the case of § 531 para. 2 sentence 1 No. 3 ZPO - according to § 531 para. 2 sentence 1 No. 1 ZPO does not preclude (BGH, judgment from 21 December 2011 - VIII ZR 166 / 11, NJW-RR 2012, 341 17, 3 Senate Resolution, March 2015 - VI ZR 490 / 13, supra, 12).
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c) These hearing injuries are also relevant to the decision. It can not be ruled out that the Court of Appeal might have come to a different conclusion if due consideration had been given to the defendant's presentation.

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