A hospital is liable for an unrecognised subarachnoid haemorrhage caused by aneurysms in the brain in the form of a warning leak if the patient suffers severe health damage due to subarachnoid haemorrhages occurring again 13 days later. This is what the 26th Civil Senate of the Higher Regional Court of Hamm decided on 9 November 2012, thus confirming the first-instance conviction of the hospital by the Regional Court of Paderborn on the merits.
Due to a sudden onset of severe headaches, the plaintiff, who was 34 years old and from the district of Paderborn and working on assembly in Kiel at the time, had visited the emergency room of the defendant hospital on 13 July 2005 and had been discharged there on the same day with the diagnosis "tension headache" after treatment with an analgesic.
From 26.07.2005, the plaintiff suffered further subarachnoid haemorrhages, which have made him a severe nursing case. He can no longer walk, communicate only at a low level and only swallow mushy food. Due to the alleged medical treatment error - the subarachnoid haemorrhage in the form of a warning haemorrhage which was not recognised on 13.07.2005 - the plaintiff demanded € 200,000 in damages for pain and suffering, compensation for over € 45,000 in material damages and a declaration of liability to pay compensation for further damages from the defendant hospital.
The 26th Civil Senate of the Higher Regional Court of Hamm confirmed the defendant hospital's liability for damages on the merits. The medical treatment on 13 July 2005 had been faulty because the necessary diagnosis of a subarachnoid haemorrhage in the form of a warning haemorrhage had been omitted. In the case of a sufficient diagnosis, the haemorrhage would have been discovered and could have been treated at that time with a good chance of recovery. The major haemorrhage that occurred later would have been avoided. This was to be assumed on the basis of a reversal of the plaintiff's burden of proof. Since the circumstances according to which the amount of damages for pain and suffering and the extent of the material damage had to be assessed still had to be clarified, the defendant was initially to be ordered to pay damages on the merits.
Judgment of the 26th Civil Senate of the Higher Regional Court of Hamm of 09.11.2012 (I-26 U 142/09), not final (BGH VI ZR 12/13).
Source: Press release of the OLG Hamm
Goldberg Attorneys at Law 2013
Lawyer Dirk Möller
Specialist lawyer for medical law
E-mail: info@goldberg.de
