BGH: Operation by representative unlawful due to lack of consent
Karlsruhe (jur). A firmly agreed surgery by the chief doctor is actually to be carried out by the chief doctor. For other doctors, the patient's consent is then missing, an operation by a representative is therefore illegal, the Federal Court of Justice (BGH) in Karlsruhe decided in a judgment published on Monday, August 15, 2016 (Az .: VI ZR 75/15) . The representative and the hospital are then liable for consequential damage even if the surgeon is not to be blamed for any errors.
In the determined case, misalignment of fingers on the left hand should be corrected. The chief doctor had examined the patient in advance. He concluded an option contract with the hospital, according to which the chief physician should also operate.
Instead, a deputy senior doctor operated. The patient then had problems with his hand and claimed compensation.
However, an expert found that the surgeon was not to be blamed for any errors. The Koblenz Higher Regional Court therefore dismissed the claim for damages. The health complaints would also have occurred if the chief doctor had operated himself. There was therefore no real damage.
But it does not matter, the BGH ruled. Representation was not provided for in the election contract. The patient's consent was therefore only valid for one operation by the chief doctor. The representative could therefore not rely on that consent and his operation was unlawful.
As justification, the BGH pointed out that every operation means an intervention in physical integrity. The consent is necessary to allow the doctor to do this.
"If the patient, in exercising his right to self-determination, declares that he only wants to be operated on by a certain doctor, another doctor is not allowed to carry out the procedure," says the recently published judgment of July 19, 2016. do not override it self-confidently ”. The patient had to be informed in advance via a representative in order to give his consent. mwo / fle