§ 12a ApoG: Expert pharmacist should run the "home pharmacy" free of charge and receive a financial compensation for the unanswered effort

a) The home care contract, which closes the pharmacist with the home carrier according to § 12a Abs. 1 ApoG, is its legal nature, subject to official approval, under private law, acting in favor of the resident framework contract, the central care of the residents by the in the Contract certain pharmacy legally legalized.
b) The statutory provision in § 12a ApoG pursues a dual objective. On the one hand, the legislator wants to provide the homes within the meaning of § 1 HeimG a knowledgeable pharmacist who leads the "home pharmacy" free of charge. On the other hand, the pharmacist should receive a (potential) financial compensation for the unpaid expenditure in such a way that he supplies the residents with medicines within the framework of a long-term contractual relationship.
c) A contracting party that terminates the contractual relationship by failing to observe an agreed period of notice violates its obligation to take due consideration under § 241 para. 2 BGB and commits a breach of duty within the meaning of § 280 para. 1 sentence 1 BGB (following BGH, judgment of 16 January 2009 - V ZR 133 / 08, NJW 2009, 1262).

BGH JUDGMENT III ZR 446 / 15 of the 14. July 2016

BGB § 280 Abs.1; ApoG § 12a Abs. 1 Continue reading

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 Continue reading

Liability for a partly fateful, partly caused by treatment error health damage on the occasion of a birth

The plaintiff suffered severe damage to his health in connection with his birth. Therefore, he claimed the treating gynecologist, the midwife, a pediatric nurse and the carrier of the document hospital for damages.

In the first part of the proceedings, the grounds for the claim were a final verdict of the Oberlandesgericht. It found that the defendants were jointly and severally liable to compensate the plaintiff for all damages incurred by the plaintiff "on the occasion of and in response to the defendant's treatment after birth". The present part of the proceedings concerned the amount of the damages due to the applicant. In that regard, the Oberlandesgericht has ruled that a binding effect resulted from the previous basic judgment in that the defendants were liable only for the damages incurred by the claimant after his birth. In that regard, the amount of damages caused by the defendant must be limited to a maximum of 20%. Continue reading

Dentist has a patient about a prosthetic restoration by means of single crowns or a blockage completely clear

A dentist should fully educate a patient about prosthetic restoration using single crowns or interlocking if both treatments are medically equally indicated and commonplace and have substantially different risks and chances of success so that the patient has a real choice.

Higher Regional Court Hamm, 26 U 54 / 13 of the 17.12.2013

§§ 823, 253, 249ff BGB Continue reading

In the case of medical liability matters, the prohibition of over-acceleration applies equally to an expert's report

(a) in the case of a medical offense, there may be a breach of the constitutional prohibition of "over-acceleration" in particular if the defense allegedly rejected as late would have prompted an expert's opinion, which was generally written, but in the period between the end of the opposition anyway, could not have been obtained anyway.

b) Defensive means are generally not filed "after expiry of a period set for this purpose" (§ 296 para. 1 ZPO), if the court after the expiry of the (according to § 276 para. 1 sentence 2 ZPO set (and extended) Anwerwide- give the defendant an opportunity to reply to the complaint without setting a time-limit.
BGH, judgment of the 3. July 2012 - VI ZR 120 / 11 - OLG Karlsruhe

ZPO § 296 Abs. 1, § 340 Abs. 3 Satz 3 Continue reading

Obligation of the physician for the consequences of a second intervention by a post-doctor

Obligation of the physician to accept the consequences of a second intervention by a post-treatment physician, which is required because the pretreating physician has undergone a treatment error during the first intervention.

BGH, judgment of the 22. May 2012 - VI ZR 157 / 11 - OLG Munich
LG Munich I

BGB § 823 Abs. 1 F, § 249 Ba
Continue reading

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