Have the hospital owner and the patient (here: the mother of the minor
Patients) the common idea that a statutory health insurance
insisting on the costs of hospitalization,
and if this turns out to be a mistake, then that is missing between the
Hospital bearer and the patient (here the mother of the minor
Patients) closed the contract of employment.
The adjustment made in the absence of the business basis of the
the hospital owner and the patient (here: the patient's mother)
Closed treatment contract causes the hospital operator
the remuneration to be determined in accordance with §§ 10 ff BPflV for the
general hospital services of the patient (here: the mother
of the patient).
BGH, judgment of the 28. April 2005 - III ZR 351 / 04 - OLG Koblenz
BGH URTEIL III ZR 351/04 vom 28. April 2005
BGB § 242 Bb, Bd; § 313 Abs. 2 n.F.
The III. Civil Senate of the Federal Court has to the hearing
from the 7. April 2005 by the chairman judge Schlick and the judges
Dr. Worm, Dr. Kapsa, Dörr and Galke
recognized for right:
On the appeal of the plaintiff is the judgment of the 3. civil Division
of the Higher Regional Court Koblenz of the 20. July 2004 lifted.
The appeal of the defendant against the judgment of the 15. civil Division
of the district court Koblenz of the 18. October 2002 is rejected,
as far as the defendant has been ordered, to the applicant
4.665,04 € plus interest in the amount of 5 percentage points above the
Base rate since 23. January 2002 to pay.
Moreover, the matter becomes a new trial and decision,
also about the costs of appeal appeal, to the
Court of Appeal remanded.
- 3 -
The plaintive city is the bearer of a hospital in which S. -
PH, the daughter of the defendant and her former husband
SH, was hospitalized.
On the 5. March 1999 brought the defendant her daughter for inpatient treatment
to the applicant's hospital. When recording, she stated, for
her daughter insured by the AOK L.; Insured
be her husband, the roofer SH. Furthermore, the signed
Beklagte einen “Aufnahme-Antrag”, in dem es unter anderem hieß:
“Ich beantrage für meine Person/für den oben bezeichneten Patienten
the granting of the regular benefit in the hospital.
I hereby acknowledge the General Terms of Contract and
the house rules for the patients as well as the care costs tariff in
der jeweils gültigen Fassung an.”
§ 8 Paragraph 3 of the General Terms and Conditions of the Claimant,
that a cash-desk patient who uses the services of the hospital,
which are not covered by the reimbursement of a health insurance, as
Self-payer is obliged to pay the fees for these services.
After the above, until the 19. March 1999 permanent stationary
Treatment was the daughter of the defendant again, namely the 19. February
2000 to 20. March 2000, in the applicant's hospital. At this hospitalization
The then husband of the defendant had brought in the child.
- 4 -
The AOK L. took over the cost of these inpatient treatments
not because the defendant's husband is not insured at the time
was and therefore no family insurance for the daughter
S. -P. duration. The hospital subsequently sued the defendant
the inpatient treatment of the daughter in the period of 5. to 19. March 1999
9.124,02 DM (= 4.665,04 €) and for inpatient treatment of 19. February
2000 to 20. March 2000 another 20.202,39 DM (= 10.329,32 €), in total
so 14.994,36 €, in bill. This amount plus interest will be charged with the lawsuit
The plaintiff submits that the defendant's daughter is due to an am
5. March 1999 with the defendant contracted treatment contract in the hospital
the applicant. For those up to the 19. March 1999
Permanent inpatient treatment, she could according to the treatment contract and
according to their General Terms and Conditions of the Defendant
claim, after it has been found that for their daughter no
statutory health insurance. For the cost of the
then husband of the defendant caused inpatient treatment of the
Daughter in the year 2000 is the plaintiff according to § 1357 BGB.
The district court granted the claim, which has appeals court
she dismissed. Followed by the appeal approved by the Court of Appeal
the claimant continues to pay.
- 5 -
The claim is well founded, as far as the applicant payment of 4.665,04 €
plus interest. Moreover, the revision leads to the annulment of the appeal judgment
and to remit the case to the Court of Appeal.
The Court of Appeal essentially stated:
Regarding the treatment of the daughter of the defendant in the period of
5. until the 19. March 1999 is a paid treatment contract between
failed to reach the parties. A possible treatment contract of the
At any rate, cash patients with the hospital did not have the content,
that the patient - about the legally required excess
addition - to pay a fee for inpatient treatment. Because with
the indication of the legal health insurance gives the patient - like here
the defendant as mother of the patient - to realize unmistakably that he
do not want to commit personally to a payment. From the defendant
unterschriebenen “Aufnahme-Antrag” ergebe sich nichts anderes. Auf
§ 8 Paragraph 3 of the General Terms and Conditions, the plaintiff could claim their compensation
do not support. The general contract conditions are not
been effectively involved in any treatment contract between the parties
(§ 2 para. 1 No. 2 AGBG); Moreover, it was in § 8 para. 3 the general
Contract terms to a surprising and therefore according to § 3
AGBG void clause acted.
In addition, a payment obligation of the defendant does not lead to a
supplementary contract interpretation. When weighing the interests of both parties
could be a will of the parties, according to which in the absence of insurance
the defendant has to bear the hospital costs can not be determined.
Although there may have been a regulatory gap in the treatment contract.
The parties did not agree on the case that an insurance relationship
do not exist. In this regard, however, should be excluded
that the defendant had agreed to a payment obligation
take. Because she was not able to pay for lack of own income.
That the applicant derives from such a contractual obligation the
Husband of the defendant according to § 1357 BGB could have claimed
The defendant did not have to pay for the costs of. In accordance with § 1357 para. 1 BGB
treatment of her daughter caused by her then husband (19, February
2000 to 20. March 2000). This co-liability does not apply
even if the spouse used, as here the defendant,
do not have the necessary means to - in case of dispute
inpatient treatment of the common child caused - special needs
Also a claim of the plaintiff on reimbursement of expenses from management
without order (§§ 683, 670 BGB) are excluded.
The appeal judgment does not stand up to the legal examination.
- 7 -
1. The applicant may be ordered by the defendant for the treatment of her
Daughter in March 1999 claim a compensation in the amount of 4.665,04 €
(§ 611 para. 1 BGB).
a) As the appellate court correctly stated in the approach, went
the will of the parties, one for the defendant not with payment obligations
(private law) contract for the inpatient treatment of
to close their daughter.
The parties went to the findings of the appeals court
Assuming that the defendant's daughter would go to the hospital as a cash patient
the plaintiff. In such a case, there is a claim for remuneration
of the hospital institution directly and exclusively against
the statutory health insurance. This is without prejudice to the fact that next to this
öffentlich-rechtliche “Abrechnungsverhältnis” ein “Behandlungsverhältnis” zwischen
the patient and the hospital occurs on a private law
Contract (§ 611 BGB) is based. Accordingly, that was already addressed
“Angebot” der Klägerin von vornherein auf die stationäre Behandlung ohne Kostenbelastung
- after the modifications of social law - for the patient
and the defendant who delivered them (see BGHZ 89, 250, 258, BGH, judgment of
9. Mai 2000 – VI ZR 173/99 – NJW 2000, 3429 f; s. auch Senat BGHZ 140, 102,
110; BSGE 70, 20, 22 f und BSG NJW-RR 1998, 273, 274).
b) The parties have no subsidiary liability of the defendant
in the event that - contrary to their common assumption - legal
Health insurance coverage for the daughter of the defendant does not exist.
- 8 -
aa) Such liability can not § 8 para. 3 of - in the written
“Aufnahme-Antrag” der Beklagten in Bezug genommenen – Allgemeinen Vertragsbedingungen
taken from the applicant.
In the wording of the wording of the clause only
it, a cash-desk patient, who uses the services of the hospital,
which are not covered by the reimbursement of health insurance
as a self-payer obliged to pay a fee for these services.
The Senate may interpret this provision itself because the appellate court
whose contents have not been sufficiently examined and further findings to that extent
are not expected. The examination reveals that it remains open whether § 8 para. 3
General Terms and Conditions of the present General Terms and Conditions
concerns. The appeal of the appeal rightly asserts that
Clause seems to regulate the case - not given here - that of the cash-patient
Optional services or other services, not from the outset in the GKV-Leistungs
Catalog of treatments or services included
would; § 8 para. 3 of the General Terms and Conditions
not beyond that the remuneration obligation of a patient who - in the erroneous
Acceptance to be legally insured - as a cash patient in a hospital
Issue treatment and the usual benefits for the legally insured
have received. The wording of § 8 para. 3 of the General Terms of Contract
allows such an understanding. From him is after the uncertainty rule
(§ 5 AGBG in conjunction with Art. 229 § 5 sentence 1 EGBGB) at the expense of the user of the GTC, ie the plaintiff, to go out.
bb) A supplementary contract interpretation according to which the defendant has a
(subsidiary) liability for her daughter's hospital treatment
- 9 -
a regulatory gap - an incompleteness contrary to plan - provided (cf.
BGHZ 127, 138, 142). In the case of a dispute, however, such is likely - what the appellate court
has left open and thus the power of determination of the Senate
subject - not available. The parties have the question whether the defendant
for the costs of inpatient treatment of their daughter, regulated;
namely in the sense that the daughter of the defendant in the context of
social insurance law - with cost compensation in proportion
the applicant and the competent AOK - and the defendant is not in
Claim should be taken. That the parties thereby of false premises
does not change that they are this point - the exclusion
a payment obligation of the defendant - actually have regulated.
c) However, the Court of Appeal did not take into account that the private law
“Behandlungsverhältnis”, das zwischen den Parteien bestand, die
The basis for the business was missing and the necessary contract adjustment
a claim for payment by the claimant against the defendant.
The basis of the business are the common ideas of both parties,
which have not been raised to the actual contract content,
which have come to light at the conclusion, or the business partner
identifiable or unimpeachable notions of others
Party of the presence and future entry or non-entry of certain
Circumstances on which the business will of the parties builds
(st. Rspr., z.B. BGHZ 25, 390, 392; 40, 334, 335 f; 61, 153, 160; 84, 1,
8 f; 120, 10, 23; BGH, Urteile vom 26. Oktober 1999 – X ZR 54/97 – NJW-RR
2000, 1219 und vom 15. November 2000 – VIII ZR 324/99 – NJW 2001, 1204,
- 10 -
aa) Between the plaintiff and the defendant came - at least konkludent
- with the treatment requested by the defendant of her daughter in
Hospital of the applicant closed by the defendant in its own name
Contract on inpatient treatment of her daughter (§§ 611,
328 BGB; see. BGHZ 89, 263, 266; 106, 153, 161; BGB-RGRK / Nüßgens
12. Edition 1989 § 823 App. II Rn. 7; Steffen / Dressler, Medical Liability 9. Ed.
2002 Rn. 10; Laufs / Uhlenbruck, Handbook of the Medical Law 3. Edition 2002 § 40
Rn. 8; German / Spickhoff, Medical Law 5. Edition 2003 Rn. 81 and 563).
bb) At the conclusion of the treatment contract, the parties had in common
the notion that AOK L. was going to cover the cost of hospitalization
the daughter of the defendant take over because the daughter over
the then husband of the defendant had family insurance; that turned out
as a mistake. Such a common mistake is a typical case
lack of business basis (compare BGHZ 58, 355, 361 f; 123, 76, 82;
Staudinger / J. Schmidt, BGB 13. Edit 1995 § 242 Rn. 370; s. also § 313
Abs. 2 BGB n.F.).
cc) Missing but the treatment contract concluded by the parties
the business basis, then has an adjustment of the contract content
according to the principles of good faith, under full consideration
mutual interests (see BGH, judgment of 26, October
1999 supra, p. 1220; s. also § 313 para. 1 BGB nF). Such a contract adjustment
leads here to the fact that the applicant the remuneration for inpatient treatment
from the defendant.
- 11 -
(1) The defendant was at risk of being hospitalized for her treatment
brought child health insurance was. It is not up to the hospital operator
to ensure the insurance cover of the patient.
The patient (or, in the case of minors, their parents) has this in their own interest
to arrange the necessary and to teach the hospital-bearer correctly.
He usually knows if and who has health insurance
consists; He can usually ask questions without difficulty
clear out at the health insurance. If there is no insurance cover, the
Patient, if necessary, by claiming social assistance for cost recovery
to care. Conversely, the hospital carrier usually has no
Insight into the personal and social security conditions
as well as in the income and assets of the patient. the
Hospital bearer, the daily a variety of shots - partly under
Emergency conditions - has to cope, it is for practical reasons
hardly possible, the information of the patient concerning the health insurance
each before the start of treatment. Rather, he is allowed in principle
trust the patient to give him accurate information
makes. Although the hospital usually collects the costs from the cash-patients
the health insurance for the patient. This, evident by
Reasons of administrative simplification induced exercise, touches the above
However, risk assignment to the patient is not. It can also be one
Hospital owners can not be approached, without any specific reason
with the income and assets of a patient admitted
as a precaution to clarify whether own benefit claims against
the responsible social assistance provider for the treatment of the - impoverished -
Patients (§ 121 BSHG, now § 25 SGB XII; see
- 12 -
the publication of the Senate judgment of the 10. February 2005
– III ZR 330/04).
(2) The contract adaptation must follow the legal requirements.
The applicant was held for her general hospital services
to demand compensation in accordance with §§ 10 ff BPflV. Of the
she was not allowed to deviate from this. especially
was a differentiation according to the income and asset situation
the patient is not allowed (see § 17 section 1 sentence 1 KHG; Dietz / Bofinger,
Krankenhausfinanzierungsgesetz, Bundespflegesatzverordnung and Resale Rights
§ 17 KHG Erl. I 4 and § 10
BPflV Erl. 2). This state price law leaves no room for - otherwise
the contract adjustment offered - reasonableness considerations. In the course of
Contractual adjustment, the defendant is therefore obliged for the prompted by it
Treatment of her daughter to pay the uniform care rate.
2. Also because of the fixed by the husband of the defendant stationary
Treatment (19, February 2000 to 20, March 2000) of the common daughter
contrary to the opinion of the court of appeal, a liability of the
a) If a minor child is admitted for inpatient treatment,
then the treatment contract is usually between the parents and the
Hospital carriers come about as a contract in favor of the child
(§§ 611, 328 BGB, see above under II 1 c aa mwN). From such a treatment contract
unless otherwise provided by the circumstances.
gives, both parents entitled and obliged; it basically does not matter
who accompanied the child to hospitalization.
The Court of Appeals has this, but so far from the plaintiff
also not claimed, not examined. The applicant receives
in this respect an opportunity for a new presentation. The court of appeal will if necessary
determine whether the husband of the defendant has a treatment contract
in favor of the common daughter in their own name and in the
Name of the defendant (§ 164 BGB) closed. The defendant could be one of such
- Agreement adapted as appropriate in accordance with the abovementioned principles
adhere directly, as a joint debtor with their then
b) On the basis of those previously taken by the Court of Appeal
In any case, a claim of the plaintiff against the defendant
according to §§ 611, 1357 Abs. 1 BGB because of the defendant's husband
caused hospital treatment can not be denied.
aa) According to § 1357 Abs. 1 BGB every spouse is entitled to do business
to provide adequate cover for the family's needs. The
In this case, inpatient treatment of the daughter of the defendant and of her
Husband who was medically commanded and without recourse to
Special benefits, was always part of the reasonable maintenance
of the family (BGHZ 116, 184, 186 f).
Such transactions will entitle and oblige both spouses
unless the circumstances indicate otherwise. The
- 14 -
on the First Law on the Reform of Marriage and Family Law of the 14. June
1976 (BGBl. I S. 1421) based version of the provision is no longer linked
the duty of the woman under previous law to keep the household in its own right
Responsibility to lead (§ 1356 para. 1 sentence 1 BGB aF), and to whom you
accordingly granted power to conduct business within their home
To get effect with effect for the man. Rather, with respect
that the distribution of tasks in the marital
It is up to partners themselves and the mission statement of the so-called housewife marriage
has been given up, the legal power to the obligation of the partner
an die “angemessene Deckung des Lebensbedarfs der Familie” gebunden worden.
The Federal Court of Justice has decided how far the need for life
the family rich, determine each family according to the circumstances
the spouse. As the income and assets of the contractor
however, often remain hidden, is crucial to the Lebenszuschnitt
to turn off the family as it appears outwardly.
In addition, the integration of § 1357 BGB in the maintenance law is living together
Spouses (§§ 1360, 1360a BGB). To the circumstances,
which may be relevant in the application of § 1357 BGB,
Therefore, the economic conditions in their relation to the
Costs triggered by the respective business dealings in question
become. Also in this respect, the view of an objective observer after the
Appearance of the spouses, as it is generally disclosed to third parties, crucial
(See BGHZ 94, 1, 5 f; 116, 184, 188 f, Senate judgment of 11, March
2004 – III ZR 213/03 – NJW 2004, 1593, 1594).
bb) These principles were not sufficiently taken into account by the Court of Appeal,
by focusing solely on the lack of resources of the defendant.
- 15 -
It depends on whether the appearance of the costs of - like
the applicant emphasizes, urgency - hospital treatment of the common
Daughter still in the context of the then economic conditions
the family of the defendants stood; because the spouses did not live apart at that time
(see BGHZ 116 supra, Senate judgment of the 11, March 2004 supra). Is in
the judgment quoted by the Appeal Court of the Oberlandesgericht Köln
NJW-RR 1999, 733 have been misunderstood. That the cost of hospital treatment
out of proportion to the life of the family,
According to the result of the taking of the evidence, it can not easily be based on
be placed. After the appeal judgment, the defendant has to interrogate
testified as a party that her husband was employed as a truck driver,
when she brought her daughter to the hospital. Her then husband
has confirmed as a witness, in the period in question constantly as an employee
to have been active.
The Court of Appeals will still have to make findings in this regard
to have. The burden of proof and proof that the principle as a business
in the sense of § 1357 Abs. 1 sentence 1 BGB to be regarded hospital treatment
For that reason, the common daughter did not become one
Joint liability of the defendant wife according to sentence 2 this provision leads, because
the economic family relationships are to be considered as one circumstance
something else results, lies with the defendant.
(cc) Should it appear after the new appeal hearing that the
Defendant is not liable under § 1357 para. 1 BGB, also a claim
according to the principles of the management without an order. If and
the extent to which legal transactions of a spouse
schäft zugrundeliegenden “Familienbezugs bzw. -interesses” eine Mithaftung
of the other spouse answers primarily according to § 1357 para. 1
BGB. The resulting from this - primarily liability-extending - rule
Liability restrictions may not apply through the application of the
Rules on the management without order (§§ 683, 670 BGB) at the expense
of the other spouse.