The Higher Regional Court of Hamm ruled that a specialist surgeon owes a patient 220,000 euros in damages for pain and suffering because he inadequately informed the patient about the risks of a colonoscopy (intestinal endoscopy), as a result of which the patient suffered an intestinal perforation with serious complications.
After the plaintiff, who was 48 years old at the time, had presented himself to the defendant, a specialist surgeon in Bielefeld, because of bleeding in his bowel movements, the defendant performed a colonoscopy with polyp removal in November 2007. As a result of this procedure, a perforation of the intestine occurred, which had to be operated on as an emergency a few days later. The plaintiff suffered peritonitis and had to undergo further operations and intensive medical treatment for months. He is now on early retirement and 100% disabled; an artificial anus had to be inserted. He demanded compensation from the defendant on the grounds that he had not been properly informed about the risk of a colonoscopy and about alternative treatments.
The Higher Regional Court (OLG) of Hamm amended the first-instance decision of the Regional Court of Bielefeld and awarded the plaintiff damages for pain and suffering in the amount of 220,000 euros.
According to the Higher Regional Court, its amount can be justified by the complication-laden course of the disease with a long treatment period and permanent impairments, which would have ultimately led to early retirement.
The defendant was liable because it had to be assumed that he had treated the plaintiff without sufficient information. According to the assessment of the medical expert heard in the proceedings, an intestinal perforation occurring in the course of a colonoscopy was a rare complication. However, if it occurred, it would predominantly result in an inflammation of the abdominal cavity, which could be life-threatening and would have to be treated surgically. Therefore, the risk of perforation had to be explained.
The Higher Regional Court could not find that the defendant had properly informed the plaintiff. The content of the declaration of consent signed by the plaintiff did not indicate sufficient risk disclosure. According to the pre-printed part of the declaration, reference had been made, inter alia, to "the unavoidable adverse consequences, possible risks and risks of complications associated with the intervention". This general statement was largely devoid of content and, with its reference to "unavoidable adverse consequences", had a trivialising effect. It could not be inferred that the statement had been read by the patient, understood by him or discussed with him. Forms and leaflets handed out and signed by the patient were no substitute for the necessary information discussion. Moreover, they did not show that a patient had been informed about a risk not explicitly mentioned in the declaration. The statement of the defendant's doctor's assistant also did not prove that the plaintiff had been sufficiently informed. The plaintiff's presumed consent could also not be assumed. The plaintiff had presented plausible reasons why he would have reconsidered the matter if he had been properly informed, discussed it with another doctor or relative, or even visited another clinic.
The judgement is final.
OLG Hamm, judgement of 03.09.2013, file number: 26 U 85/12
Source: Press release of the OLG Hamm of 08.10.2013
Goldberg Attorneys at Law 2013
Lawyer Dirk Möller
Specialist lawyer for medical law
E-mail: info@goldberg.de
