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Case:
BGH VI ZR 179/04 VI. Civil Senate VI ZR 179/04
Date:
14 June 2005
Translated by:
Tony Weir
Copyright:
Sir Basil Markesinis

§138(2),(3); ZPO §286 C ZP
§ 823(1) BGB
a) The application of the principles of prima facie proof in cases of HIV infection resulting from the administration of blood products;
b) The duty of the person administering blood products to retain documentation and produce secondary evidence of the batch number of the product administered.
c) The duty, if it is impracticable to give information about the dangers of HIV infection when blood products are about to be administered, to give an explanation to the patient thereafter, and to advise him to take a HIV test (duty to give safety information after the event).
d) The post-operative duty to give safety information extends to the protection of the future spouse of the patient.

The plaintiff claims damages of not less than €127,823 plus interest from the defendant hospital in respect of pain and suffering as well as a declaration that the defendant must meet any future material losses due to her having been infected with HIV.

After being injured in a motorcycle accident M. was treated in the defendant hospital: fresh blood from three different donors was administered along with several blood products. In December 1997 a blood test on M. disclosed HIV antibodies, and in January 1998 it transpired that the claimant, who had known M. since 1988 and married him in 1994, was also infected with HIV.

The Landgericht dismissed her claim. Her appeal was allowed. By this appeal the defendant seeks to have the decision of the Landgericht reinstated.

Reasons: ...
The defendant's appeal is dismissed.

II.

1. The court below was correct to hold that the claimant's being infected by the HIV virus constituted an actual invasion of her health in the sense of §823(1) BGB, which covers any deleterious effect on normal bodily functioning, regardless of whether there be pain or any serious modification of one's resistance or whether there has been any actual outbreak of AIDS.

2. The claimant was infected by her husband who had been infected by the blood products supplied in the defendant hospital.

a) The court below held that there was prima facie proof that the claimant had been infected by her husband.

b) The court below also held, rightly, that there was prima facie proof that the claimant's husband had been infected in the defendant hospital.

aa) Prima facie proof typically arises where common experience teaches us that there is a causal link between two facts in a series of events of a particular type. Such a typical series of events exists when it is clear that the blood used was contaminated and there is no other event outside the control of the party administering the treatment which could explain the illness suffered by the person infected -- assuming in the case of HIV infection after a blood transfusion that the patient who received HIV-contaminated blood or blood products did not belong to a group especially susceptible to HIV infection and did not have a life style which increased the chances of infection.

3. (a)
The claimant asserted that the batch of blood product PPSB given to her husband was contaminated, an assertion the defendant did not sufficiently rebut by "substantiating" his denial.

In order to have his assertions considered a party must respond to those of his opponent in some detail, that is, with further evidence (§138(2) and (3) ZPO). This is certainly the case, in line with the principles of supplementary evidence, where, as here, all the essential facts are, or should be, within the defendant's knowledge and it is proper to make him produce them. Under these principles the defendant must at least divulge what batch of blood was used for the transfusion, so that the claimant could produce facts indicating that the PPSB dose given to her husband was contaminated. The defendant has given no details on this matter: disclosure of the batch number could resolve the question of the date of production and consequently the kind of virus involved, but the defendant had not stated that he could not, or should not be expected to, make such disclosure. Given the existence of the patient's medical notes and the possibility of obtaining the batch dose numbers from the chemist's files, it was inadequate for the defendant merely to say that it is too late for the case to be fully investigated since they keep their documents for only ten years. It should have said why it was impossible to adduce the proof held to be indispensable by the court below. There was no other way the claimant could obtain and present the necessary information about the doses, for the patient's medical notes did not identify them.

b) The appellant's objections are not in point.
It is true, as it asserts, that the duty to produce supplementary data depends on its being appropriate to require their production ...[but] here there was an obligation to keep a register of the dose numbers. As the president of the Federal Medical Association declared on 15 October 1993, doctors are required to keep proper records... This extends to records of the batch numbers of the blood administered, and there is nothing to suggest that such a duty did not already exist in 1985.

bb) The court below held that in 1998 when the claimant's husband first went to the University Clinic F. in 1998 the proven immunity deficiency and the high virus load rendered it very likely that the infection had occurred about ten years earlier. This disposes of the possibility that the source of the infection was anything other than the blood provided in 1985. The court below held that this was prima facie proof and it was not displaced by the appellant's suggestions of other possible sources of infection: what was needed was concrete evidence, not just a theoretical possibility, of a separate source of infection....

3. It was also correct of the court below to hold that the post-operative duty to give safety information required the doctors in the defendant hospital to inform the claimant's husband, who had received so many transfusions, of the possibility of HIV infection and to advise him to take a test. This would have been perfectly easy in view of the time he remained in hospital.

a) ... Specialists might not have been absolutely certain at the time of the link between blood transfusion and HIV infection, but the consequences of HIV infection and AIDS are so grave that the duty arose as soon as it was known that there was any real possibility of the danger, and in 1985 the possible link between transfusion and HIV infection was being seriously, if hesitantly, discussed.

If it is impossible to give prior information because emergency treatment is required or the patient is so seriously injured as to be unresponsive, as here, the doctor's duty to inform the patient is transmuted into a duty, in deference to the patient's autonomy, to give him safety information as soon as possible, at any rate where there is a risk to the life of the patient or those he comes into contact with.... In this case there was the additional duty to take care to prevent the spread of a dangerous infection.

c) The court below did not, as the appellant urges, pitch this duty too high: it followed the opinions of the experts and concluded that already in 1985 the risk of a link between blood transfusions and HIV infection was well known....

4. The court below was also right to hold that the postoperative duty to warn of the dangers of HIV infection arising from the transfusion was owed not only to the patient being treated but also to the person who was later to become his wife.

a) While it is true that §§844, 845 are exceptional in affording claims to secondary victims and should not normally be extended, that is not relevant here, for as this court has explained, a claim under §823(1) BGB for harm directly suffered by the claimant is unaffected by the consideration that it occurred through the intermediacy of another. The principle that there is no liability to secondary victims beyond the parameters of §§844, 845 BGB applies only when they have suffered purely economic harm as a result of the invasion of another's primary rights or interests: it is inapplicable in a case like the present where harm suffered by the victim results from an invasion of her own rights and interests under §823(1) BGB for which the defendant is answerable.

b) In order to prevent an unbounded extension of the class of claimants a special relationship may be required in cases of shock damage, where the harm is psychical in nature. In such cases a close personal relationship between the primary and secondary victims serves to identify those whose own well-being is affected by the harm to the other party and so have suffered more than a "normal" risk of life in this world. This consideration is not relevant to cases like the present. It is an important feature of this case that the special risk of HIV infection affects not only the first person to be infected but also third parties, as in cases of cholera or the plague. We need not decide whether all third parties are to be included as beneficiaries of the duty to give postoperative safety advice, but the spouse or cohabitant of the patient certainly qualify. This is required by the rules of imputability in delict, especially as HIV infection can be fatal, an ailment such that those treating it are under a special duty to do everything possible to prevent its spread. In this case the claimant's husband was frequently hospitalised and it would have been very simple for the doctors to advise him to take a test and so diminish the risk of the infection spreading. ...

6. The defendant argued that the amount of damages should be reduced because the defendant, if held liable in full, might not be able to claim proper contribution from another possible defendant [the B. Co., which supplied the blood products]. The court below was right to dismiss this argument. We can leave aside the question whether the argument has force only where the possible defendant in the contribution claim is, as has been the case previously, a social insurer whose liability is limited by law, for it can certainly only apply where there is a proper joint-and-several liability (Gesamtschuld) between the defendant and another tortfeasor in the sense of §§421, 840(1) BGB. The court gave as its reason for denying the existence of such a Gesamtschuld that the B. Co. was not causally responsible for the claimant's harm, but the true reason is that there was no proof that the B. Co. was at fault in providing the contaminated blood, fault being a precondition of a Gesamtschuld under §840 BGB. A risk has to be ascertainable before the producer is bound to guard against it: an unknown development risk does not render the producer liable under §823(1) BGB. Here there could be liability in negligence for producing virally infected blood products only if the virus was identifiable and it was possible to exclude it, and since the court below conclusively held that in Autumn 1985 there was no sure test for the existence of the virus, it cannot be accepted that in 1984 the B. Co. should have used the process of pasteurisation.

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