The Higher Regional Court of Hamm ruled that a surgical specialist owes a patient 220,000 Euros in damages for pain and suffering because he inadequately informed the patient about the risks of a colonoscopy, which subsequently led to the patient suffering a bowel perforation with severe complications.
After the then 48-year-old plaintiff presented to the defendant surgical specialist in Bielefeld due to rectal bleeding, the defendant performed a colonoscopy with polyp removal in november 2007. This procedure resulted in a bowel perforation, which required emergency surgery a few days later. The plaintiff suffered from peritonitis, had to undergo further operations, and received intensive medical treatment for months. He is now on early retirement and 100% disabled, having required a colostomy. Citing, among other things, that he had not been properly informed about the risks of a colonoscopy and treatment alternatives, he demanded damages from the defendant.
The Higher Regional Court of Hamm amended the first-instance decision of the Regional Court of Bielefeld and awarded the plaintiff 220,000 Euros in damages for pain and suffering.
According to the Higher Regional Court's findings, the amount of damages is justified by the complicated course of the illness, which involved a long treatment period and permanent impairments that ultimately led to early retirement.
The defendant is liable because it must be assumed that he treated the plaintiff without adequate informed consent. According to the assessment of the medical expert heard in the proceedings, a bowel perforation occurring during a colonoscopy is a rare complication. However, should it occur, it predominantly results in peritonitis, which can be life-threatening and requires surgical treatment. Therefore, the risk of perforation must be disclosed.
The Higher Regional Court could not ascertain that the defendant had properly informed the plaintiff. The content of the consent form signed by the plaintiff did not indicate sufficient disclosure of risks. According to the pre-printed part of the declaration, reference was made, among other things, to "the unavoidable adverse consequences, possible risks, and dangers of complications associated with the procedure." This generally worded declaration was largely devoid of substance and appeared to downplay the risks with the reference to "unavoidable adverse consequences." It could not be inferred from it that the declaration had been read, understood, or discussed with the patient. Forms and leaflets handed out and signed by the patient do not replace the required informed consent discussion. Furthermore, they did not indicate that a patient had been informed about a risk not explicitly mentioned in the declaration. Sufficient disclosure to the plaintiff was also not proven by the statement of the defendant's medical assistant. A presumed consent from the plaintiff could also not be assumed. The plaintiff presented plausible reasons that, had he been properly informed, he would have reconsidered the matter, discussed it with another doctor or relative, or sought out a different clinic.
The judgment is legally binding.
Higher Regional Court of Hamm, Judgment of 03.09.2013, File reference: 26 U 85/12
Source: Press release of the Higher Regional Court of Hamm dated 08.10.2013
Goldberg Attorneys at Law 2013
Attorney Dirk Möller
Specialist lawyer for medical law
Email: info@goldberg.de
