Burden of proof for a breach of the obligation to inform a re-pregnancy

The burden of proof for a violation of the obligation to inform a re-pregnancy has the patient. It must therefore be certain that the reference to the failure rate has been omitted.

OLG Hamm 26 U 112 / 13 vom 17.06.2014 - Information on the possibility of pregnancy despite sterilization

The appeal of the plaintiffs against the 26. June 2013 announced judgment of the 5. Civil chamber of the district court Arnsberg is rejected.
The costs of the appellate court are imposed on the plaintiffs.
The judgment under appeal is provisionally enforceable.
Plaintiffs shall be able to avert execution by providing a security deposit of 110 per cent of the enforceable amount unless the defendant provides such security before enforcement.
The revision is not permitted.

The 02.03.1969-born plaintiff attended the birth of her 2. Child in October 2006 in the hospital of the defendant by the chief physician S sterilize. Nevertheless, in the year 2009 came to a new, unwanted pregnancy. The plaintiffs therefore claim in the main proceedings claims for compensation of at least 10.000 € € for reasonable compensation, the compensation of material damages of 7.893,00 €, monthly maintenance damages and the determination of further compensation for material damages.
In the first instance, they referred in particular to a supposedly faulty sterilization procedure as well as a lack of information about the remaining failure rate in the case of professionally performed sterilization.
The district court has dismissed the lawsuit after witness examination and expert assessment. The sterilization was done according to the documentation lege artis. There are no indications of treatment errors. It is also not clear that the re-pregnancy is based on a faulty sterilization, because there is a failure rate even when professionally carried out. About this failure rate, the plaintiffs were also evidenced by the testimony of the witness. S and the witness Dr. Y has been cleared up.
On the other hand, the appeal of the plaintiffs pursuing the first-instance request is directed.
They remain that a sufficient explanation of the failure rate has not been made. The district court had misjudged the evidence raised to it. Even assuming that the witness Dr. If S had said that 4 quoted 1000, that would not be enough.
The applicants request that
amending the judgment of the Landgericht Arnsberg, cited at 26.06.2013, concerning: I-5 O 29 / 11 to order the defendant
1. to the claimant 7893,00 € plus interest in the amount of 5 percentage points above the base rate of 2.844,00 € since 16.4.2010 and 337,00 € each since 01.05.2010, 01.06., 01.07., 01.08., 01.09., 01.10., 01.11., 01.12.2010 and 01.01.2011, 01.02., 01.03., 01.04., 01.05., 01.06. and to pay 01.07.2011;
2. to the applicant for the child K, b. to pay, on a monthly basis, in advance, a maintenance fee in the amount of 2009% of the minimum requirement of the respective ages of the Düsseldorfer Table, less the respective half of the child allowance, until the child reaches the age of majority (##. ##. 2027);
3. to the applicant for the child K, b. to pay, on a monthly basis, in advance, a maintenance fee in the amount of 2009% of the minimum requirement of the respective ages of the Düsseldorfer Table, less the respective half of the child allowance, until the child reaches the age of majority (##. ##. 2027);
4. to pay the plaintiff a reasonable allowance for damages, which is at the discretion of the court together with interest in the amount of 5 percentage points above the base rate since the 16.04.2010;
5. to pay to the plaintiff a reasonable allowance for pain and suffering, which shall be made at the discretion of the court together with interest in the amount of 5 percentage points above the base rate since the 16.04.2010;
6. declare that the defendant is obliged to compensate the plaintiffs for all future material damage caused by the birth of the child K, b. on ##. ##. 2009;
7. order the defendant to pay the plaintiffs' fees to attorney C of 2.161,99 € out of court costs plus interest at 5 percentage points above the base rate since lis pendens.
The defendant requested that
to reject the appeal.
It defends the contested decision.
The judicial assessment of the evidence was exhaustive, without contradiction and in the matter to make. The appeal court is bound by that.
The Senate has personally heard the plaintiff and brought evidence by unsubstantiate hearing of the witness Dr. S.Wegen of the result is on the protocol to the Senate appointment of the 17. July 2014 directed.
Because of the further facts and disputes, in particular the exact wording of the first-instance applications, reference is made to the contested decision and to the pleadings and annexes to the case-file.
The appeal is unfounded.
The district court rightly dismissed the claim. The claims asserted by the applicants are not entitled to the result of the taking of the evidence from any legal point of view. Claims do not arise in particular because of the existence of medical errors according to §§ 611, 280, 249 ff., 253 Abs.2 BGB. Because it can not be determined that the defendant made such mistakes.
The Senate relies in this respect on the first-instance assessment by the court expert and the result of the testimonial interrogations in both instances.
According to the findings of the expert in his written opinion, the chosen method of operation according to Kroener was the most appropriate, so that the choice of this method is not objectionable.
It also can not be determined that the sterilization has been carried out incorrectly.
The plaintiffs invoke without success the fact that it did not erroneously come to a total closure of the Fallopian tubes, because two Umstechungsligaturen had not been set. For, according to the expert, the report on the subsequent Operation of the 14.08.2009 contains no indications of a wrong course of action. Rather, suture has been found on both tubes, so that insufficient suturing during sterilization is not proven.
The expert, however, has withdrawn from the documentation of sterilization in the year 2006 - Operation Report v. 18.09.2006 and pathological findings from the 21.09.2006 - as well as from the documentation of the subsequent pregnancy - Surgery v. 14.08.2009 and pathological-histological findings from 14.08.2009 - concluded that on the right side of the fimbrial funnel has only been partially removed. Nevertheless, a causal treatment error can not be deduced from this. The expert has stated that this does not prove any error, in particular that, if the funnel is sufficiently closed (sutured), pregnancy is precluded even if part of the funnel remains.
Decisive is then the closure of the funnel. That this was not done or insufficient, is not fixed.
Moreover, it could not be ascertained with sufficient certainty that a merely imputed inadequate closure was the cause of the re-pregnancy.
The expert has stated that for pregnancy, as alternatives, both the right tube with a partially existing funnel and the left tube could be causal.
On this basis, the causality could not be determined, because both a treatment error regarding the right tube and the fateful realization of the failure rate of the left tube may have formed the cause of the pregnancy to the same extent.
The defendant is also not accused of a medical error in the form of a breach of obligations for therapeutic education.
Although the doctor is also obliged to inform the patient about circumstances that are crucial for securing the success of the treatment. However, the applicants have not demonstrated that they have infringed that obligation to provide information, in particular with regard to an existing failure rate and the consequent requirement for further contraceptive measures in the case of 100% protection.
The burden of proof for a breach of the information obligations of a new pregnancy has the patient (see Geiss / Greiner, Medical Liability, 7 edition, S. 125 mwN)
It is true that it can not be said that the plaintiff was not in need of clarification because she had already been informed by the gynecologist about the residual risk. Because the gynecologist Dr. M has stated that she always leaves the reconnaissance to the surgeon. But if they clarify about error rates, then they document this. However, such documentation is not available.
However, the Senate can not be convinced that the plaintiff has not been informed about the risk of failure, despite the need for clarification.
It is not enough for the witness to see Dr. S on 30.08.2006 claimed that sterilization was a safe decision after the claim, without, however, speaking about 100% safety.
Because on this basis, it can not be stated that an 100% residual risk-free amount has nevertheless been explicitly or implied. Without further explicit commitments, safety always includes only a relative classification in the area of ​​contraceptive options, but not necessarily an 100% scientific safety that is clearly not achievable for every physician and therefore can not be promised.
It is also not certain that a reference to the failure rate, which the expert also correctly considered necessary, has been omitted.
Although there is no entry in the index card for 2006 indicating a failure rate, it is undisputed that the indicative "4 / 1000" was subsequently made.
The Senate assumes, however, that an already decisive verbal reference has been issued.
The defendant claims that Dr. S pointed out that there is no 100% safety during sterilization. This has the witness Dr. S also confirmed in his hearing before the district court under a general explanation of a failure rate of 4 1000. The Senate is based on his personal impression of the accuracy of this testimony. In particular, there are no sufficient indications of a falsification of the medical records that would speak against the witness. The witness has already stated before the district court that the corresponding entry has been made subsequently. In particular, he then plausibly stated at his hearing before the Senate that he had entered the handwritten and apparently made with another pen entry "4 / 1000" only in the knowledge of the already done sending copies of the documents to the plaintiff, so notice a change had to. But in this statement behavior there are no clear indications that the witness could not have told the truth.
On the basis of his statement, the expressed therapeutic information is sufficient. If the patient knows that the risk of pregnancy persists in the stated percentage range, it is also clear and needless to say that the spouses may need to take further measures if they want to have a higher supposedly one hundred percent safety standard.
A violation of the duty to provide therapeutic education is thus not detectable.
A liability of the defendant is thus not given in total. The dismissal of the decision of the district court is not objectionable. The appeal against it is unsuccessful.
The decision on costs follows from § 97 Abs.1 ZPO; the decision on provisional enforceability is based on §§ 708 Nr.10, 711, 543 ZPO.
The revision is not to be admitted because the case has no fundamental meaning and does not require a decision of the review court to advance the law or to ensure a uniform case law.

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