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Case:
BGHZ 90, 96 VI. Civil Senate> (VI ZR 188/82) = NJW 1984, 1395 = JZ 1984, 629
Date:
07 February 1984
Copyright:
Professor B.S. Markesinis

On 3 July 1979 the plaintiff was admitted to the S hospital of the defendant Regional District for unexplained pain in his right femur. The first examination was carried out by Dr K, the Duty Doctor. He also discussed with the plaintiff that in order to exclude the possibility of a tumour, a colonoscopy was indicated. Subsequently it was carried out by Dr B, the Senior Medical Officer. In the course of it, the sigmoid colon was perforated and the defendant abandoned the investigation. After an X-ray picture had confirmed the injury, the plaintiff was operated on immediately—complications subsequently occurred.

The plaintiff sued the defendants for adequate damages for pain and suffering as well as for a declaration that they were liable to compensate him for all present and future material and mental damage. He stated that he had not effectively agreed to the colonoscopy and alleged that he had not been informed sufficiently of the character of the investigation or of any possible risks nor that it might be accompanied by considerable pain. He had suffered much pain when the instrument had been inserted in the intestine and had said so at the time. The perforation of the intestine had been caused by a culpable mistake of the second defendant in carrying out the colonoscopy.

The defendant contended that before the colonoscopy the investigation had been sufficiently explained to the plaintiff. They were of the opinion that in view of the fact that complications occurred extremely rarely, it had not been necessary to inform the plaintiff of the risk of a perforation of the intestine. They denied that by this treatment they committed a medical error.

The District court held that ‘the claim raised in the action is justified in principle’. The Court of Appeal dismissed the appeal of the defendants, declared that the plaintiff’s claim for damages for pain and suffering was justified in principle and allowed the action for a declaration in respect of material damage; as regards mental injuries in the future, it referred the case back to the District court. Upon a second appeal by the defendants the case was referred back to the Court of Appeal.

Reasons

I. The Court of Appeal has interpreted the judgment of the District Court to the effect that it decided not only the claim for damages for pain and suffering by an interim judgment in principle, but also the plaintiff’s action for a declaration. Contrary to the District Court, which held the second defendant to have committed an error in his treatment, it regards the claim as well founded on the ground that the medical investigation which resulted in the injury to the plaintiff was illegal because the plaintiff had not been given sufficient information and because therefore his consent was invalid. In so holding, the Court of Appeal argued essentially as follows: It is possible to agree with the District Court that the information had to be given concerning the risk of a perforation of the intestine as a result of a colonoscopy since complications occurred seldom. However, the plaintiff should have been informed that in certain circumstances the investigation could cause the plaintiff considerable pain. This should have been done, in particular because the diagnostic measure was not of vital importance. No such information had been given. Without having to consider the question as to whether the plaintiff had risked his consent during the colonoscopy or whether the second defendant had, in treating the plaintiff, committed an error, he was liable according to §§ 823 I, 847 BGB to pay damages for pain and suffering. The defendant Regional District was liable according to § 831 BGB for the second defendant as its agent in performing his duties. It was not sufficient for the Regional District to plead as a defence that the second defendant was a specially competent doctor of long experience; nor was the fact that the medical heads of department had regularly called together the doctors working in their department, including the second defendant, for instruction and further education. A proper organization of a hospital required also that the doctors should be given advice concerning the general principles governing the duty to provide information and to control their observation by random inspection. This had been omitted. In addition, the liability of both defendants for the material damage resulted from a violation of the contract for medical treatment. As regards future mental damage, a further investigation of a factual kind was necessary.

II. The reasoning of the decision under appeal cannot stand up to legal scrutiny.

1. The Court of Appeal has held rightly that the information given to the plaintiff about the proposed colonoscopy was incomplete because she did not also tell the plaintiff that this diagnostic investigation might have disagreeable effects, psychological as well as physical. The plaintiff was aware of this having learnt about the technique of colonoscopy. However, he should also have been told that in certain circumstances this might cause him considerable pain.

A patient who has not experienced colonoscopy previously and has not heard about it from others could not expect this or even regard this as normal. For a patient to decide whether to consent to a physical investigation, it is relevant, among other considerations, what he must accept in the course of it and what pain he will have to suffer which exceeds that to be expected in connection with a diagnostic medical examination. This knowledge must not be withheld from him merely because he might be frightened and might object to what is normally a harmless investigation or because he may stiffen and thereby make the investigation more difficult for himself and the doctor. It is for the doctor to calm a frightened patient and so to explain to him the need for a painful investigation that he can be certain of the patient’s consent and co-operation. In the case of a colonoscopy this may include the information that the doctor would immediately abandon the investigation should he find the pain intolerable. Since neither the duty doctor at first examination nor the second defendant before the start of his investigation told the plaintiff what might ensue, the plaintiff’s consent was invalid and the colonoscopic investigation was illegal because he was not aware of all the circumstances affecting his decision.

2. It does not necessarily follow therefrom, as the Court of Appeal assumes incorrectly, that the second defendant is vicariously liable for the injuries to the person of the plaintiff as a result of the perforation of the intestine. The facts as found by the Court of Appeal so far are insufficient for holding the second defendant liable for having provided defective information concerning the unpleasantness of a colonoscopy.

(a) In as far as the required information of the patient was held to have been incomplete because he was not told before the proposed diagnostic investigation of the possibility of considerable pain (without resulting in a serious and permanent injury to his health), it is not immediately obvious that the patient, if correctly informed, would have declined the investigation. It is even less obvious in the case of a patient who is not normally given to complain of pain. In the present case the plaintiff has described himself in the course of proceedings as a man who is not really hypersensitive; moreover, he has not argued that he had been insufficiently informed because he had not been told of the possibility of pain in the course of the investigation. In these circumstances the mere allegation by the plaintiff that he would have declined to undergo the investigation for fear of pain would be insufficient to accept this account (see the decision of this Senate of 7 February 1984, reported below, BGHZ 90, 103 and the order of this Senate of 27 October 1981—VI Z R 63/81, VersR 1982, 74, 75 = NJW 1982, 700). Since the plaintiff made no such allegation, the fact that the defendants have not pleaded expressly that the plaintiff would have consented to the investigation in any case, cannot be held against them. Instead, the plaintiff’s pleadings until now are insufficient to support the conclusion that his right to decide himself whether to agree to the investigation had been violated on the legal ground relied upon by the Court of Appeal.

(b) In addition, this Court must accept that in the view of the Court of Appeal the risk of which the plaintiff should have been informed, namely that the investigation might be accompanied by considerable pain, did not materialise in his case. It is true that the plaintiff has made allegation to this effect, but to the detriment of the defendants, who denied from the outset that the investigation had been accompanied by considerable pain; the Court of Appeal did not make any findings to this effect. Evidence taken on this question was not taken into account by it. If, however, the colonoscopy did not cause the plaintiff considerable pain, the investigation also did not cause him any injury. Even if his right to determine himself whether to agree to the investigation has been violated in some respects, he did not suffer any personal injury for which compensation would have to be paid. This conclusion is not vitiated by the fact that in carrying out the colonoscopy leading to the perforation of the sigmoid colon an entirely different and remote risk materialised provided that the latter did not have to be disclosed (for details see infra III). The reason is that the damage arising therefrom falls outside the sphere of protection of the rule establishing liability which imposes a duty upon the doctor to pay damages for a physical investigation which is illegal in the absence of a valid consent by the patient.

(aa) It is unnecessary in the present case to determine the question of law as to whether no connection exists between the illegality of the physical investigation of the patient in the absence of effective information and the resulting physical injury whenever culpably the basic risks inherent in the investigation have not been set out, but another link has materialised which did not have to be explained to the plaintiff (affirmatively the Court of Appeal Karlsruhe, Med. R. 1983, 180, 192 with a concurring note by Kern; Kern-Laufs, Die ärztliche Aufkläurungspflicht, 1983, p. 151 ff.; contra: Mutons in Münchener Kommentar p. 823 no. 423). Certain objections could be raised against this view because in the case of medical investigations involving risks which are not quite inconsiderable, the right of the patient to determine himself whether to agree to the investigation and who also agrees without any knowledge and without any information, always includes his freedom of decision for or against an investigation covering his body as a whole.

(bb) The objections set out here do not apply in the present case.

Admittedly, the action of the second defendant does not cease to be illegal for the reason only that the plaintiff’s consent certainly covered an investigation free of pain. The consent of a patient to a medical investigation is not a declaration of intent which can be divided into one concerning the violation of personal integrity on the one hand and another, on the other hand, which involves exposing oneself voluntarily to danger by accepting certain possible risks (see however Kern-Laufs loc. cit. and Med. R. loc. cit.). It is true that in substance it covers both (see Deutsch, NJW 1982, 2585 and in Arztrecht und Arzneimittelrecht p. 42 no. 42), but this only defines the legal significance of the declaration of intent. However, it has no bearing on the question as to what is the substance of the declaration made to the doctor in consenting to the medical investigation. The substance is clear: if the consent is valid, it applies without restriction. If it is refused (or what is the same, if it is invalid for failure to receive sufficient information), the declaration of intention means, and cannot be interpreted otherwise, that the patient will not agree to the medical measures, as advised, that is to say in their entirety (similarly Mertons in Münchener Kommentar loc. cit.). The motives for his refusal are legally irrelevant as is the question whether hypothetically he would consent to all investigations without complications. If he did not give his consent, he did not consent either to an investigation which was illegal and to which he did not agree, but which was successful. At best the disregard of his right to determine himself whether to undergo the investigation did not result in any damage.

It is possible, however, that in such cases the claim for damages may not succeed for a different legal reason. The duty to supply information concerning the remote damages of considerable pain is designed to protect the patient’s right to decide freely whether he will consent to the medical investigation, having regard to the advantages of a diagnostic assessment of his state of health and to the physical unpleasantness which he will experience if he undergoes the investigation.

The medical duty of contract which is to provide information concerning the potential danger of considerable pain is therefore not designed to facilitate the independent decision of the patient whether he is willing to accept possible dangers to his health. Instead it is to enable the patient to decide whether he is willing to face a potential temporary impairment of his well-being as a result of sudden pain. In such cases, a connection between the illegality consisting of the doctor’s neglect of his duty and that consisting of the violation of the patient’s right to determine himself whether to undergo a medical investigation exists only if the risk of a painful treatment has materialised. If apart from this no risk of any damage to health exists, having regard to the fact that the investigation does not present any danger of which the patient should have to be informed, the failure to inform him of the possibility of pain cannot form the basis of liability in respect of a complication which occurred nevertheless in the course of the diagnostic investigation (see Steffen in Verhandlungen des 52. Deutschen Juristentags vol. II Part I p. 15; similarly in another connection Giesen, JZ 1992, 448, 454 with reference to the decision of this Senate of 16 June 1981, VI | R 38/40 = VersR 1981, 954 = NJW 1981, 2513; for criticism of the denial of a link of illegality in general see Mertens loc. cit.).

In the present case the plaintiff cannot, therefore, base his claims for damages on the ground that he was not informed of possible pain in the course of the colonoscopy.

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