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%.

The VI responsible for the Medical Liability Act, among others. Civil Senate of the Federal Court of Justice has rejected the appeal of the plaintiff. In the basic judgment, the binding effect has only been to establish that the defendants are jointly and severally liable for the damage to health resulting from the negligent postmenminal negligence of the defendants, which contributed to the injury of the plaintiff. The court of appeal has limited the liability of the defendant on this basis without any legal error to a liability share of 20%. Although co-causation, in terms of liability, is in principle equal to the sole cause in its entirety. Exceptionally, this is not the case if it is established that co-causation has only led to a definable part of the damage. Such an identifiable part of the damage has been determined by the Court of Appeal. The defendants then provided proof that the major part of the damage to health did not occur in the period for which they are liable for damages after the final basic judgment, but was already present at that time. After birth, irreparable damage to health had already occurred without a treatment error, which was compounded by errors in postpartum care and treatment. The fatal health damage incurred during the birth of the court of appeal has, after expert advice with a definite share of at least 80% accepted and therefore limited the liability of the defendant error-free to a maximum of 20%. In addition to the appraisal of the experts, the Court of Appeal was able to draw on further concrete indications of the "medical distinction of the claims". According to the experts, the plaintiff would certainly have been a case of nursing even when required to be transferred to the pediatric clinic immediately after birth, and was out of the question for the working process. He would not have been able to lead an independent life. The mental impairment would have existed in any case. Due to these circumstances, the assumption of a definable part of the damage to health was not objectionable under revision law.

 

Judgment of the 20. May 2014 - VI ZR 187 / 13

 

LG Kempten - 3 O 2613 / 92 - Judgment of the 20. January 2011

 

Higher Regional Court Munich - 24 U 671 / 11 - Judgment of the 28. March 2013

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