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Case:
BGH NJW 1996, 776 VI ZR 329/94 (München)
Date:
21 November 1995
Judges:
Professor B. S. Markesinis
Copyright:
Mr Raymond Young

Facts:

The claimant's big toe was fractured on the 26th January 1991. He was fitted with a leg plaster, which permitted walking, at the clinic of the former co-defendant, on the orders of the second defendant (hereafter called the defendant) who was a doctor. At the same time he was given a leaflet about what to do if there were complications with the plaster cast. It mentioned the danger of interference with blood circulation. The claimant had pressure pains and called at the outpatients department on the 6th February 1991. Small pressure marks on his heel were revealed on removal of the plaster, so no new plaster was put on, and he was given crutches instead. He then came to an appointment in outpatients on the 20th February 1991, complaining of severe calf pains. Vein thrombosis was diagnosed, which was treated in hospital, but it could not be healed operatively or with drugs, as it was several days old. The claimant sued the defendant and the former co-defendant for compensation for defective treatment and insufficient explanation.

The claim failed at both earlier instances. The claimant lodged an appeal in law but withdrew it against the former defendant. It led to quashing and reference back.

Reasons:...

II. These statements do not stand up to legal examination in the appeal in law.

1...

2. The appeal in law is correct in objecting to the fact that the appeal court did not regard an explanation to the claimant about the risk of thrombosis as necessary. According to the case law of the Senate, the doctor must give an explanation to a patient about the specific risks of a treatment if they would severely cramp his lifestyle if they were realised. These dangers include those of deep leg vein thrombosis. The appeal court obviously proceeds on this basis. It considers however that here no explanation was needed at the point in time of the treatment, because "the danger of a thrombosis from immobilisation on outpatient treatment and therefore the prophylaxis in this situation" was "admittedly under discussion but was not in any way the norm"; the patient did not need an explanation about a step which was not the medical norm. The appeal in law correctly disputes this view as erroneous in law.

The assumption of the appeal court is flawed from the outset. The appeal court takes into account according to the nature of the case that the prophylaxis for thrombosis was not yet at that time the medical norm. But the duty to explain is not about the necessity of a prophylaxis to avert the risk of thrombosis nor about whether such a step was already at that time the medical norm or not. The question of the necessity for an explanation about the risk of thrombosis is only about whether the danger of a thrombosis arising on the prescribing in outpatients of a plaster permitting walking, as here, was sufficiently known in medical circles at that time.

As the Senate decided in its judgment of the 12th December 1989, the medical duty of explanation presupposes that the particular risk concerned is known according to the state of medical experience at the point in time of the treatment (reference omitted). In any case, in cases in which, as here, alternative treatments were available, like the prescribing of crutches or of a special shoe, it is not necessary for this purpose that the scientific discussion about particular risks of a type of treatment is already closed and has led to generally accepted conclusions. It will then suffice that serious opinions in medical science indicate definite dangers connected with the treatment, which cannot be merely dismissed as insignificant outsider opinions, but must be regarded as important warnings (reference omitted). Thus in the case in question even an ongoing discussion in medical science about the dangers of thrombosis and the possibilities of combatting it by prophylaxis with drugs in outpatients would suffice to trigger the duty to explain. This is because in such cases the patient's right of self-determination requires the dangers possibly associated with the chosen treatment methods to be communicated to him, and for it at the same time to be indicated to him that such dangers can be avoided or reduced by the other treatment methods which are available.

...

III. Because of all this, the disputed judgment must be quashed in so far as it concerns the defendant, in order that the appeal court can make the necessary findings about whether and to what extent the risk of thrombosis was serious and under discussion (and in a way that the defendant could recognise) at the time of the treatment.

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