Hospital must disclose in gerügtem hygiene lack of hygiene measures, otherwise gross errors in treatment

BGH: if the gross Behandlungsfehler&#8220 “; in consideration

Clinics should be able to demonstrate compliance with the hygiene standards. Otherwise, this may indicate a gross hygiene errors, so that patients can make because of a suffered damage to Health slight liability claims, decided by the Federal court of justice (BGH) in Karlsruhe, Germany in a recently published judgment of 19. February 2019 (Az.: VI ZR 505/17).

Had been removed, complained a woman from the area of Lüneburg, the enlarged uterus as well as part of a labia surgery. The Doctors had explained to the woman previously about the procedure.

On 6. In March 2012, she was released from the hospital and two days later in the emergency room again. It has been widely studied clinically, a pelvic examination was not documented.

After the woman reported of severe vaginal bleeding, she was in surgery again. An open seam have been, inflammation in the abdominal cavity, and infection with the intestinal bacterium Enterococcus faecalis identified.

The patient, the infection and inflammation of a medical treatment errors, and lack of hygiene in the clinic. You have not received the usual preventive treatment with antibiotics.

Infection with the intestinal bacterium go back, apparently, to the Patient in your hospital room. These have smeared the walls with feces. Also had been in the shower mold. Under these circumstances, the Intestinal bacteria could be reached during the Operation, due to the lack of disinfecting measures in the wound.

In court, the patient has made claims for damages because of the error handling and hygiene, defects are liable to be asserted. The hospital denied the hygienic maladministration.

The higher regional court (OLG) of Celle ruled that the hospital was to blame, no treatment error. The applicant has not demonstrated that the alleged lack of hygiene caused in the patient room, the infection. In addition, you have conceded the possibility of infection during surgery. A “grober“ Treatment error but this was not.

The court overturned the LSG-judgment and remanded it. The higher regional court during the examination of the existence of a “rough Behandlungsfehlers&#8220’ve; not enough of the failure of preventive antibiotic treatment is taken into account. The clinic meet a so-called “secondary Darlegungslast“ due to the aforementioned hygiene deficiencies.

First, a “primary Darlegungslast&#8220 insist; in the case of the patient. She had to give evidence about existing hygiene deficiencies. In the case of credible cited “Hygieneverstößen“ had to then but “regelmäßig“ the hospital in its secondary burden of demonstrating that it has complied with the hygiene standards. Such as disinfection and cleaning plans are submitted as evidence that the Hygiene was observed. The detailed patients of the presumption of the Existence of a hygiene error, so the clinic must rebut.

The accusation of hygiene deficiencies cannot be resolved, come to a “gross Behandlungsfehler“ in consideration, decided by the Supreme court. A gross treatment error leads to a burden of proof reversal: the patient in the burden of proof is not, but conversely, the hospital must prove that they suffered health damage.

16. August 2016 was decided by the Supreme court in another dispute with one of a patients claimed hygiene error similar to (Az.: VI ZR 634/15, JurAgentur message from the 5. October 2016). At the time, had lit up after a surgery on the elbow, the wound of the plaintiff, so that he suffers since then, movement limitations and pain. The Patient suspected a hygiene error, and was with another patient in a room located, the wound was evidently infected with a resistant germ.

Also, in that dispute, the Federal court of justice ruled that in the case of unknown sources of infection must first attend to the patients, where he could have infected. Here, the plaintiff had, however, referred to its neighbors with not ausheile of the wound. One expert considered that the joint placement in a patient’s room is possible, when increased hygiene standards are adhered to. The clinic have now, however, the “Darlegungslast“, whether it has kept to such a high level of hygiene standards, at the time of the BGH. fle/mwo